**Mining Claim Use and Occupancy Management**

**BLM National Training Center Telecast**

**September 17-18, 1997**

This transcript is from the closed-captioning file produced during the
telecast.

It may contain errors in transcription and omissions.

**Day 1 (September 17, 1997)**

Announcer: the Bureau of Land Management Satellite Network Presents Live
from the BLM National Training Center in Phoenix, Arizona, \"Mining
Claim Use and Occupancy Management,\" a Closer Look at Inspection and
Enforcement. And Now, the Host of Your Program, Matt Shumaker.

Shumaker: Good Morning, Everyone, and Welcome to Mining Claim Use and
Occupancy Management. Last Year at about this Time We Introduced the New
Rules at 43 CFR 3715. The Telecourse at That Time Covered Background and
General Administration. This Year\'s Two‑day Course Will Focus on
Inspection and Enforcement Methods. I Think We Have Some Really Good
Sessions Planned for this Broadcast. Joining Me for Our First Segment
Today Is Rick Deery. Rick Is a Staff Geologist at BLM\'s Washington
Office. Rick, We\'re Glad to Have You With Us.

Deery: I\'m Glad to Be Here, Matt. I See You Arranged Moist Weather For
Those of Us in the East When We Come Here, We\'ll Feel at Home.

Shumaker: Always Want to You Feel Welcome. Before We Begin Our Show, I
Would like to Mention Throughout This Program You Will Be Able to
Communicate with Us by Telephone And Fax Using Numbers Provide to Do
Your Offices. The Telephone Numbers Are in Your Office\'s Downlink Guide
and In the Written Material That Accompanies this Program. You Can Send
Us a at Any Time. We\'ll Try to Answer Your Fax Questions as Soon as We
Can. Use the Form Provided with Your Written Materials. Print Your
Question with a Dark Marker and Please Don\'t Use a Cover Sheet. If You
Don\'t Want Your Name Mentioned on the Air, Just Check The Box on the
Fax Form. You May Also Call Us Whenever You like. Our Operators Are
Standing By. Actually, They\'re Sitting By. We\'ll Take Your Calls as
Soon as We Can. There Is Also a Scheduled Question and Answer Period in
Our Afternoon Session. As the Program Progresses, You\'ll Need a Copy of
the Regulations at 43 CFR 3715. We\'ll Be Referring to Them Often. Most
of the Written Materials That We\'ll Be Showing You Are Included in Your
Packet. Each Downlink Site Should Have Received One Master for
Duplication. Contact Us Right Away If Your Site Didn\'t Get a Set. Pages
in the Packet Are Numbered By Section. We\'ll Try to Refer You to the
Right Page and Section. We Distributed a Large Number of Videotape
Packages from Our 1996 Mining Claim Use and Occupancy Telecourse. If You
Received Two Sets, Please Return the Extra Set of Tapes to The National
Training Center. Now, Rick\'s Going to Get Things Started with an
Overview of the Program. Rick, What\'s Happened During the Past Year?
What Are BLM\'s Goals and Constraints?

Deery: It\'s Easy. We\'ve Had this Rule. We\'ve Had Another Rule That
Came Out in February on the Bonding Regulations. And We Now Have a Task
Force Working on the 43 CFR 3809. Within the Area of Locatable Minerals
Management as a Program There Has Been a Considerable Degree of
Activity. In Terms of What\'s Going to Happen in \'97 in this Program,
Well, as You Might Imagine, We Had a Grace Period, and Things Sort of
Held Their Fire for a While. What Happened in \'97, Grace Period Ended,
Occupancies Get Inspected. Yes, Ok, That\'s Nice. That Happened, and
Some of this Has Happened. But at the Same Time, We Also Had to Deal
with a Slightly Larger Issue. There Was an Inspector General\'s Audit
Prepared on the Use and Occupancy Program, and the Upshot of That Was
the Inspector General\'s Office Felt That We Had Not Been Doing a Proper
Job. I May Add Another Card up Here. The Ig\'s Version of it Was That We
Have a Problem Because BLM Has No Accountability, No Tracking and No
Follow‑through. Now, What Did They Want Us to Do? Well, the Ig Suggested
in Their Report That We Do a Great Plan. \"Great Plan\" Is an
Interesting Term. What Is a Great Plan? We Were to Identify Each and
Every Occupancy out There. We Were to Identify it by Location, by Office
and Identify The Individual Assigned to Take Care of That Particular
Occupancy. We Were Then Supposed to Set a Date by Which We Would Have
Resolved the Occupancy. Headquarters Disagreed. We Disagreed Rather
Strongly With That Recommendation. Our View of it Was That That Kind of
Recommendation Only Gets A Plan. It Doesn\'t Get Work Done on the
Ground. That\'s the Reason You Have in Your Package a Letter to the
Inspector General\'s Office That Says What\'s Going On.

Shumaker: Now, That Letter to The Inspector General\'s Office Begins on
Page D‑1 of Your Handouts, and it Really Follows The Evaluation Forms
That We\'ll Talk about Later.

Deery: One of the Things We Tried to Stress to the Inspector General\'s
Office Was That Plans Don\'t Solve Problems. Actually Getting out on the
Ground and Doing the Work Solves The Problem. This Was a Problem of
Long‑standing That Took a Long Time to Develop and Simply Saying Here Is
a Great Plan Is Not Going to Resolve Matters. Grudgingly, the Inspector
General\'s Office Said We Will Accept Your Argument Why We Should Not Do
a Great Plan, but Please Send Us a Memo That Says What You\'re Going to
Do. That Memo Then Becomes the Genesis of What\'s in Front of Us. As
That Memo Says, for Fiscal Year \'98, We Want to Take on the Existing
Occupancies That Are Problems, That Is, They Are Threats to Health,
Safety or the Environment, and Examine the Ones at Existing Mining
Operations. Now, the Logic Here Is That We Take on the Worst Cases and
We Take on the Ones That Don\'t Require a Huge Amount of Work. The Ones
That Are Associated With an Existing Mining Operation Where It\'s Pretty
Clear That Occupancy or Structures That Could Support Occupancy Have a
Legitimate Purpose and Belong There. It\'s Obvious That Those That Are A
Threat to Health, Safety and The Environment Are the Ones That We Should
Be Dealing with First and Foremost. We Then Said, Well, Half the
Remaining Ones We Ought to Try And at Least Get Them Initiated By ‑‑
Sometime During 1999, Fiscal Year \'99, and Then in Fiscal Year 2000 We
Ought to Try And Work on Getting Our Last Half, the Remaining Third,
under Way. Well, the Response You Get from People Is \"Are You Crazy?\"
That\'s an Awful Lot of Work to Get Done. Let Me Give You Our View of
It. We Don\'t Expect You to Meet These Goals in the Sense That We Don\'t
Want You to Have to Launch Everything You Have at All of Your Occupancy
Problems. You Have Other Things on Your Table to Do. You Have Mineral
Patents to Examine If You\'re a Certified Mineral Examiner. You Have
Plans of Operations to Review and Approve If You Are on The Work Force
That Does That Job. This Job Is One That Is Simply Required ‑‑ Requires
Us to Be Methodical, to Document What We\'re Doing, and Show Not Only Do
the Bureau but to the Department and to the Inspector General That We
Have Made Efforts, We\'re Continuing to Make Efforts and over the
Long‑haul We Expect to Resolve The Problem. Now, What Does Each Case
Need? This Case ‑‑ this Course Is Going to Talk about Inspection And
Enforcement. Just a Quick Review, Each Case Is Going to Need Three
Things. It Should Be Obvious. You Are Going to Have to Inspect This
Thing to See If It\'s in Compliance with the Rules. You\'re Going to
Have to Decide Is the Activity Reasonably Incident? If the Activity Is
Not Reasonably Incident, Then We Can Stop Right Here and We Can Begin To
Explore Possibilities for Removal, Authorization or Some Other
Methodology for Bringing The Matter to an End. If You\'re Going to
Approve Something, You\'re Going to Have To Have Nepa. You\'re Going to
Have to Have Cultural. And You\'re Going to Have to Have T & E
Clearances. You\'re Also Going to Need Anything Else in Your Case That
Helps You out. Now, a Little Bit of Confusion Arose in Some of Our
Discussions Both at the Solid Minerals Conference When We Said We\'re
Going to Be Nepa.

Shumaker: Funny You Should Mention That. We Just Had a Fax Question
Arrive on That Very Topic. The Question Is: So What\'s the Big Deal on
Notice Level and ‑‑ Notice Level, Occupancy and Nepa?

Deery: One of the Things That This Rule Does Is it Explicitly Applies
Nepa to Use and Occupancy ‑‑ or to Occupancy, Rather, at the Notice
Level and The Casual Use Level. There Is Explicit Language in The
Preamble to the Proposed Which Says in No Uncertain Terms That All
Occupancies Have to Go Through Consultation and Consultation Isn\'t
Complete Until Nepa Has Been Completed. That Means Now Nepa Applies to
Notices. We Adopted That Scheme Untouched In the Final Regulation Except
That We Went from the Old Testament to the Plain English Version of Reg
Writing and It\'s Led to Some Confusion. Now, That Means Nepa Guidance
Applies, Standard Bureau Nepa Guidance and One of the Good Places to Go
to Find Standard Good Nepa Guidance Comes Right Here from NTC, and ‑‑
Well, this Won\'t Quite Fit. ‑‑ I Can Zoom this out. Here Is the Course
Guide for the Overview of BLM\'s Nepa Process. This Is a Useful Place to
Go and Find the Existing Policy for Nepa Processes, and in Here You Will
Find That There Are Certain Exclusions. One Exclusion Is If You Are Not
Going to Approve Something, You Don\'t Have to Do Nepa. With Respect to
Nepa, There Has Been Some Very Useful Work Being Done in a Couple of
Field Offices, and We Supported These Offices. The Arizona State
Director and Her Staff, in Particular Ralph Costa, Have Done
Considerable Work in Developing a Statewide Nepa Document for the Notice
Level Operators Who Are Engaged In Occupancy in His State. It Is out for
Public Comment. I Believe it Went out to Public Comment on the 28th of
Last Month. We Encourage You People to Take A Look at It. We Think It\'s
a Good Idea. We Think It\'s a Good Approach. We Also Understand That
over In, I Believe, the Ridgecrest Resource Area, One of Our Speakers
Tomorrow, Linn Gum, Has Prepared Areawide Programmatic Nepa Documents,
Eas, for Both Placer and Lode Operators Subject to Regulation. This Is
Another Example of Making Nepa Work for You Instead Of Treating Nepa as
Make‑work. That\'s an Important Part of This. We Have a Lot to Do in
this Regulation. It Not Only Regulates the Use And Occupancy of Lands
for Occupancy Purposes; it Also Regulates the Use of the Public Lands If
There Is No Occupancy. This Is an Important Point. If You Conduct
Operations on the Public Lands, These Rules Are Explicit. You must Meet
All of the Standards Found in 3715.5, I Believe it Is, One of Which Says
That You must Have in Hand Any And All State, Federal, Local Permits
That Are Required for That Particular Phase of the Operation. This Is
Now an Enforceable Requirement. Well, That Gives You an Extra Set of
Tools. It Gives You an Extra Set of Handles to Control an Operator With.
It Also Provides Us down the Road with an Extra Set of Reasons Why We
Will Probably Be Able to Remove Certain Squatters Off the Public Lands.
Why? Because They Simply Don\'t Have Any of the Necessary Permits in
Hand. Now, the Immediate Comeback Is Going to Be: Does this Mean We\'re
Enforcing State Law and Regulation and Other Federal Agency Regulation?
No, We\'re Not Enforcing Their Regulations. We Are, However, Looking to
See If We Think There\'s Compliance. And If There Isn\'t Compliance,
Then We Need to Bring the Matter Up to These Other Sister Agencies
Within the Federal Family or to Our Counterparts And Our Cooperators in
the State And County Governments. By Doing So, We Expand the Choices
That We Have for Managing Operations. In One Area That Will Always Come
up Is, Ok, You Want Me to Go out and Inspect. How Do I Inspect? What Do
I Do? I Don\'t Even Know What the Other Program\'s Requirements Are and
You Now Want Me to Look at Clean Water and Clean Air? My, God, this Is
Beyond Belief! Well, It\'s Not All That Bad. There Is Something Called
the Compliance Assessment Safety Health and Environment Protocol Manual,
Called a Cash Manual. This Was Prepared by a Outfit Called Tech Law in
1995. Mat Has a Copy. If Could You Turn That So the People Could See the
Thickness Without Driving the Cameras Wild, this Document Gives You Not
the Details of What Your Requirements Are or How You Have To Meet the
Requirements. It Tells You What Questions Do I Have to Ask to Find out
If the Guy Even Looks like He\'s in Compliance with the Federal End Of
It. Mind You, this Is Only the Federal End. There Are Private Parties
Throughout Who Produced Volumes That Are Similar to That, of Similar
Thickness, on Each State, and So this Compliance Manual Now Becomes
Something That We Want to Look at and Encourage You to Pick up and Look
at as a Possible Tool When You\'re Working Through Your Inspection
Plans. In Addition, this Year, of Course, We Have a New Director, So We
Decided We Would Ask the Director for Some Remarks on This, and Mat Can
Fill You in on What Happened When We Did Ask The Director for His Views
on Use and Occupancy Management.

Shumaker: about Two Weeks Ago Director Shea Visited the Training Center
and He Prepared Us Some Remarks about the Importance of Managing Mining
Claim Uses on the Public Lands. So Let\'s Spend a Few Minutes Now With
Director Shea.

Shea: Let Me Welcome You to The Mining Claim and Use Occupancy
Management Telecourse. I\'m Glad to Be Taking Part in This Great
Evolving Technology. You Can Be Assured We Will Be Using More of it in
the Future. Preventing and Ending Unauthorized Uses of Mining Claims Is
an Important and Complex Job. Obviously the Illegal Occupation Damages
the Public Lands. It\'s Our Job to Stop These Illegal Uses. There\'s No
Set Procedure. There\'s No Cut and Dried Operation. But There Are
Certain Rules We Need to Keep in Mind. The First and Most Important Rule
Is Your Own Safety. Be Sure That It\'s a Safe Operation for BLM
Employees, Indeed, for the People Who Are Doing the Illegal Occupancy,
and The Public at Large Who May Be In the General Area. This Can Be
Achieved If the Operation Is Done with Respect And Professionalism.
Tempers Will Flare, but Let\'s Keep it Professional. Finally, Always
Remember, We\'re Taking These Actions to Allow The Public Greater Access
to Their Lands. Ultimately a Healthier Public Land Will Promote Public
Use. Those of Us in Washington Are There to Help You and Support You in
the Work to Resolve These Difficult Situations. Please, Don\'t Be Afraid
to Call Us. My Best Wishes for a Successful Course, and I Hope to See
You as I Travel. Thank You Very Much.

Shumaker: We Appreciate Director Shea Taking the Time to Prepare Those
Remarks for Us. I Know from Experience How Vitally Important it Is to
Have The Support of Headquarters as We Deal with Occupancies on Mining
Claims. To Maintain That Support, Though, We All Have to Do Our Part. We
All must Do the Best Job We Possibly Can and Make Sure That We Document
Our Cases from Start To Finish. Rick, Do You Have Any Other
Observations?

Deery: Mat, I Want to Observe That this Circumstance That We Find
Ourselves in Is the Product Of Many, Many Years. It Didn\'t Get Here
Overnight. It\'s Not Going to Go Away Overnight. We Have Tried to Stress
this in Everything. We\'ve Tried to Say That There Are No Simple
Solutions, That Done Wrong We Could End up with A Legislative Solution,
Which Might Not Be the Preferred Choice. So Don\'t Feel That You Have to
Rush out and Take These on at One Felled Swoop. There Are Cases We Want
You to Get Taken Care Of. Those Are the Threats to Health And Safety. We
Need Those Taken Care of First, Last and Always. Then There Are the
Cases That Are Associated with Individual Mining Operations That
Belonged There. They Should Be Recognized as Legitimate, and We Should
Do So. Then There Are the Rest of the Cases. You May Have Someone Who
Has No Place to Go. You May Have Someone Who Has Been There for a Long
Period of Time. Removal May Not Be a Choice. Finding Another Method of
Authorizing the Activity Is, in Fact, One of the Options That We Have
Available to Us. There Is No Set Sort of Solutions. There May Be an
Opportunity to Co‑locate the Activities. A Watchman May, in Fact, Have a
Profit‑making Activity or May, In Fact, Be Engaged in Guiding
Operations. We May Find That it Is Worth Our Time, it Is Worth Our
Effort to Co‑locate Those Activities, Provided That We Are Paid Whatever
Rents Are Due Us and Provided That We Are Paid Whatever Royalties Are Do
Us. We Have a Huge Set of Regulations, Some Sitting over In the 2900,
Some Sitting over In the Recreation Regulations, That Help Solve Some of
These Problems. Once Again, There Is No Set, Steady Answer. The
Director\'s Point Has to Be Kept in Mind. Each Case Stands Alone by
Itself.

Shumaker: We Have a Fax Question Coming In, and It\'s from the Boise
District, and in Boise They Report They Have a Mining ‑‑ a Cabin on a
Mining Claim but The Geologist Pretty Much Decided It\'s Not Incidental
to The Mining Claim. The Cabin Is Well Maintained and Used Frequently.
It\'s Even Been Used on Occasion By the County Search and Rescue People
and One of the Cabin Owners Belongs to the Search and Rescue Team. The
Archaeologist Has Determined That the Cabin Is a Contributing Factor to
the Historical Value Of the Area and So the Chances Of Making the
Claimant Remove The Cabin Are Slim. Does Anyone Have Anything Similar
and How Sit Being Handled? Boise Has Kicked the Add Around A Number of
Way Nr. And Pp for the Search and Rescue Function, Although the Use Is
Infrequent, a Lifetime Occupancy Lease, a Lease for a Set Period Of
Years, Three‑year Land Use Permit. The Lands You Are Not Identified For
Disposal and Don\'t Have Any Intention of Doing So. So a Sale Is Not an
Option. They Are Looking for Some Suggestions. It May Be Premature but
it Fits With What You Have Been Mentioning.

Deery: it Sure Sounds like this Is a Case Where among Your Many Choices,
Many Options, Think About a Way to Authorize It, Particularly If the
Search and Rescue Folks Are Involved in It. That\'s a Logical One. They
Cooperate with Us, And, Frankly, We May Need Their Help Some Day.

Shumaker: One Thing You Would Want to Be Sure About, You Need To Keep
Track of the Uses and Make Sure That it Continues to Be Used as Planned.
Uses Tend to Drift Sometimes. Deery: Well, That More or less Covers
Everything I Have, Mat.

Shumaker: Well, We Will Probably Now Go to an Early Break, Rick, And
When We Come Back ‑‑ We\'re Going to Take a 10‑minute Break ‑‑ and When
We Come Back We Will Examine the Department of Justices Role in Abating
Unauthorized Uses and Look at Where BLM Fits into the Judicial System.
We\'ll See You in 10 Minutes and Don\'t Go Too Far Away. Mat. Mat.

Shumaker: Welcome Back. As You Probably Figured Out, We\'re Running a
Little Ahead of Schedule this Morning, Which Is A Good Thing. We
Originally Scheduled this Segment for about 45 Minutes but We\'re Going
to Run it about an Hour Now. Joining Us this Morning for Our Second
Session Is Linda Anderson, Assistant United States Attorney from Fresno.
Linda Works in the Civil Division of the Eastern District Of California
and Will Help Us Understand How to Proceed with Civil Litigations That
May Result from Use and Occupancy Actions. Linda, We Appreciate Your
Taking Some Time from Your Schedule to Join Us Today.

Anderson: I\'m Happy to Be Here And I Would like to Take a Chance to Say
Hello to My Clients in Bakersfield, Mariposa, Folsom and Ridgecrest. I
Have Handled Cases with All The Offices and It\'s Always a Pleasure to
Do Business with Folks Who Know What They Are Doing and Have an
Important Job And That\'s What BLM Is for Me.

Shumaker: Thank You.

Anderson: Also, Hi, Mom!

Shumaker: Very Important. Very Important. From the Last Hour, Actually
From the Last Half Hour, Right After We Finished, Linn Gum Came In to
Make a Couple Clarifications. Rick Deery Mentioned That Linn Gum Had
Been Working on Some Programmatic Environmental Assessments for Placer
and Lode Operators and Linn Wants to Clarify the Person Working on That
Was Actually George Deverse Who Is on Linn\'s Staff in Ridgecrest.
That\'s True. Also, Linn Had a Suggestion About the Question Posed from
Boise, Which Is Sort of an Adopt A Cabin Method and They Can Get A
Quitclaim from the Occupant And Use the Cabin for a Couple Of Times a
Year. Linn Can Give Details Later. Also, If Anyone Else Has a Suggestion
for What Boise Could Do, They Should Contact K40mor On Groupwise in
Boise and We Have a Graphic Showing That Address So You Can Write it
Down. It\'s One I Scribbled out. It Should Be Legible, but Only Just.
Linda, Perhaps, We Could Begin By Talking about What the Department of
Justice Needs from BLM in a Civil Litigation Case And Can You Make the
K40mor Thing Go Away. The Handouts for the Section Begin with Page A‑1
in Your Package. Linda?

Anderson: Let Me Start by Covering Some of the Three Main Points That I
Want to Make Sure That You Come Away with Today. The First Thing Is That
Although You May Think of the Justice Department in Terms of Criminal
Litigation and Prosecution of Criminal Cases, There Is a Sense In Which
the Civil Litigation Can Do More for You in Terms of An Occupancy
Trespass than a Criminal Case Can Do. We\'ll Be Talking More about That
This Afternoon. But When I Get into the Kind of Information That You
Need to Give the Department of Justice If You Want Us to Take a Civil
Action, One of Those Elements Is Literally a Laundry List of What You
Wish Would Happen on the Site, Because to a Surprising Extent, a Lot of
What You Might Like to See Happen on the Site As You Bring the Occupancy
Trespass to an End Are Things We Can Legitimately Ask the Court For and
We May Indeed Get from The Court in a Final Order. The Second Point Is
That the Lawyers, Both in the Solicitor\'s Office and in the Department
of Justice, Are People That You Have to Take with You Through The
Evidence So That They Come To Understand the Evidence in The Case and
Then They\'re Going To Turn Around and Help You Take The Court Through
That Evidence So That the Court Comes to the Same Conclusion That You
Have That You Need to Protect the Public Lands by Taking the Civil
Action and Bringing an Unlawful Occupancy to an End. Then the Third
Thing I Do Want To Stress Is That, Especially in The Civil Context,
Unlike Criminal Prosecutions, You\'re Going to Be Extensively Involved
With Your Solicitor\'s Office in The Litigation, and You\'ll See How as
I Proceed Through Some of These Materials I Have Got Ready This Morning.
First of All, Here Is Sort of an Overview of Litigation and as You Can
See, You\'re Here, and You Have an Occupancy Trespass Problem. You\'re
Going to Have to Go Through the Swamp of Evidence And Through the U.s.
Attorney\'s Office to Get to the Court. The Criminal Path Through the
Swamp of Evidence Is Going to Take You Directly to a Criminal Assistant,
Ausa, or Assistant U.s. Attorney, a Federal Prosecutor and That Person
You Are Going to Be Convincing with Your Body of Evidence That You Have
Amassed That He Should Ask The U.s. Attorney for Authority To File
Criminal ‑‑ a Criminal Charge. If the U.s. Attorney Approves That, You
Will Go into Court. Now, You\'ve Got to Make the Criminal Assistant
Happy You Have a Good Case and You Have Strong Evidence. You\'ve Got ‑‑
Then He or She Will Have to Convince the U.s. Attorney and Then Once You
Have The U.s. Attorney\'s Blessing, Eventually We Will All Be Trying To
Convince the Court You\'re Right. Path for the Civil Litigation Is A
Little Different. You Have to Come Through the Solicitor\'s Office and
Get a Lawyer There Happy with Your Case Before That Lawyer Will Then
Refer the Matter to a Civil Assistant U.s. Attorney for Civil
Litigation. Again, the U.s. Attorney Has to Bless the Action, and Once
He Has Blessed It, We Proceed into Court. Once We\'re in Court,
Literally All of Us Are Now Going to Take The Court Back Through That
Evidence to Try to Bring the Court to the Same Position That You\'re at
to See the Problem Your Way and to Understand That You Need an Order
from the Court To Bring an Occupancy Trespass To an End. While We\'re
Still Talking on This Subject, Let Me Point out a Very Critical Thing
Here Legally. You\'re Going to Need the Solicitor\'s Approval for the
Civil Route. Remember That. You Can Be Talking to a Civil Assistant
about a Case That\'s Coming Up, but That Civil Assistant Can\'t Take Any
Action Until the Solicitor Requests. So it Doesn\'t Advantage You at All
to Bypass the Solicitor\'s Office. They Can Help You Get the Case Put
Together. So Go to Them First. Secondly, the Swamp of Evidence Is
Something That Is up to You Guys to Help the Lawyers with. When We\'re
in the Swamp of Evidence, There\'s Going to Be Smoke That\'s Blown by
the Other Side and There\'s Going to Be Solid Ground or Ground That You
Think Is Solid That Turns out to Be Soft and Unable ‑‑ It\'s Not a Fact
That We Can Use to Build Our Case. We Need All of Us Together to Get
Through the Swamp of Evidence, but You Guys Know the Facts. We Know the
Law That Makes Which Of Those Facts Admissible to the Court and We Have
to Work Together to Build a Path That\'s Going to Carry the Court
Through That Swamp to See the Problem Our Way. Thirdly, There Are Some
Differences in the Kinds of Cases You May Be Bringing Civilly Versus
Criminally. We\'ll Be Talking about Those More this Afternoon, but in ‑‑
To Give You a Preview, Basically A Criminal Case, at Least in the
Eastern District of California, You\'ve Got to Have Something Sexy Going
on There. There Has to Be an Occupancy Trespass‑plus, Something That\'s
A Health or Safety Hazard, a Serious Environmental Consequence. Now,
Marijuana Growing Is Always Good for a Direct Route into Court, but If
You Just Have Occupancy Trespass and No Illegal Activity Beyond That,
You Are Going to Be Wanting to Show ‑‑ Activity Beyond That, You Are
Going to Want to Show Health or Safety Violation or Something
Hair‑raising, as Opposed to Something Mild Not Too Alarming to the Court
to Come in with a Criminal Case. A Civil Case, Just a Long‑standing
Occupancy Trespass, You Can Certainly Bring That in and We Can Ask the
Court for an Order of Ejectment To Get Someone off the Federal Land Who
Doesn\'t Belong There. You Don\'t Need the plus in That Case. Now,
You\'re Going to Hear Later On in the Day about What it Takes to Show a
Criminal Violation, but I Wanted to Just Cover this List Very Briefly,
Because What You Will See Is There Is Something Not on this List That\'s
Important. Criminal Violation, If You Violate a Federal Statute, If You
Violate a Federal Regulation That Has Been Made, That Has ‑‑ Excuse Me
‑‑ That Has a Statute That Says That the Regulations Carry Criminal
Penalties as Yours Do. There Is a Question about State And County Law
Which We\'ll Talk About Later. But There\'s Something Missing From this
List, and That\'s Common Law Crimes. But We Can Pursue Common Law Rights
Civilly and That Enables Us to Do Actions for ‑‑ Two Big Actions Are for
Trespass and for Nuisance. We Also Can Bring a Civil Action Just like
the Federal Criminal Prosecutors Can for Violations Of Statutes or
Regulations. We Can Sue for Violations of Regulations That Don\'t Carry
Criminal Penalties, Although Yours Do. We May Be Also Able to Sue for
Violations of State or County Law Where We Have a State Law Right to Do
So. That\'s Something the Lawyers Will Be Helping You with When You
Bring in Your Referral. You Know That When You Bring a Criminal Case the
‑‑ What Happens Is That the Guy May Do Time, the Guy May Have a Fine, Or
the Man Could Be Acquitted, The Man or Woman Could Be Acquitted. In a
Civil Case, You Get a Different Set of Remedies, a Different Set of
Consequences For the Occupying Trespasser. The First and Rather Powerful
Set of Remedies That You Can Get If You Have an Emergency Situation on
the Ground That You Want to Bring to a Stop Is a Temporary Restraining
Order or Tro, or a Preliminary Injunction. These Are Both Things Can You
Only Get Through Civil Litigation, and in Both ‑‑ with Both of Those,
You Can Obtain a Court Order That Temporarily Causes a Cessation of
Something That\'s Truly Dangerous or Hazardous to Health or Safety.

Shumaker: If Somebody on Site For Five to 15 Years, Does That Constitute
an Emergency?

Anderson: No, If by Our Own Conduct ‑‑ We\'ve Evidenced Something Is Not
an Emergency Because We Have Tolerated it for Lowe These Many Years,
Then We Are Going to Have to Face up to The Fact That We Can\'t Get
Emergency Relief from the Court. But If You Go out There and for The
First Time Now They\'re Digging a Mine Shaft, and It\'s Already 20 Feet
Deep and There\'s No Barricades Around It, or for The First Time You Got
Somebody Who Is Building ‑‑ Who Has Threatened to Use Mercury in the
Past and You Go out There and Now You See Friday 10‑pound Bottles of
Mercury on the Ground And They Are about to Introduce A Lot of Mercury
into the Environment, If You Have an Emergency Situation like That, That
Would Be Something You Might Even Get Better Relief on Bringing the
Action Civilly, Because If You Arrest the Person And They\'re Released
on Their Own Recognizance, You Haven\'t Brought a Stop to Activities out
On the Ground Necessarily. If We Get a Court Order That They Have to
Stop Doing Something That\'s Very Serious in The Environment, Then You
Have ‑‑ You Have Gotten More Relief Of the Sort You Really Need, Which
Is Not to Have the Guy in Jail, but to Have the Guy Not Use the Mercury
until We\'ve Got Some Kind of Setup Where We Know The Mercury Won\'t Be
Released Into the Environment.

Shumaker: Suppose Someone Has Been Draining Sewage onto the Ground for
Five or Six Years and You Just Now Discover It, Does That Constitute an
Emergency?

Anderson: If You Have Just Learned about Something That\'s Dire, You
Could Give it a Shot. Your Lawyers Are Going to Tell You What Think
about the Particular Judges That Might Review That. If You Have Just
Discovered and It It\'s Been There for Five Years and Nobody\'s Dead Yet
or You Would Have Discovered it Earlier, There Is a Question About How
Dire it Is, for One Thing. So That\'s Something You Might Want to Talk
with the Lawyers About Before You Put a Lot of Effort into Getting Your
Referral Together, Because They May Be Able to Tell You Whether It
Sounds like Something We Should Try for a Tro on or Whether It\'s
Something We Have To Live with for a Few More Months While the
Litigation Procedures. ‑‑ Proceeds. I Didn\'t Want to Tell You this Up
Front Because It\'s Sort of a Weak Point in the Situation Here, but
Sometimes Civil Cases Can Take a Long Time. I Filed a Lawsuit to Effect
a Mining ‑‑ Eject a Mining Claim Occupant and He Filed a Bankruptcy
Case. There Are Someways We Could Have Proceeded Even with Him in the
Bankruptcy Case but We Were Also Trying to Work it out with Him And So
We Sort of Sat on Our Hands for a While and That Case Has Now Been in
Court for about Three Years and We Are Just Getting Started. His
Bankruptcy Is over and We Are Going to Give up on the Guy And Try to Get
the Order Because He Is Not Working with Us. But These Cases Can Take a
Long Time. However, a Tro or Preliminary Injunction Is Something You
Would Normally Get Within 30 Days of Filing the Complaint in Court. In
Fact, You Would Be Working on Getting That Tro Within Five Days of
Filing it in Court. Once You Have Those Orders, the Tro or the
Preliminary Injunction, Then the Damage Is Under Control. The Damage Is
under Control, and The Civil Litigation Can Proceed Without Further Risk
to the Environment or Anyone\'s Health Or Safety. Let Me Turn to the
next Thing That We Can Get for You That You Can\'t Necessarily Get
Through Criminal Litigation, and That Is Damages for Various Categories
‑‑ Various Categories of Damages, I Should Say. Let Me Shuffle Papers
for a Moment. I Will Turn to a Slide That Shows an Occupancy Trespass
Location, and That Slide Shows a Nice Campground ‑‑

Shumaker: Looks like it Has All The Comforts of Home.

Anderson: Maybe There Is Even a Television There. I\'m Not Sure. But
Certainly this Is a Campsite That\'s Well Lived in and One of The
Elements of Damage We Could Claim from this Trespass Situation Is
Rental, the Rental Value of That Campsite as a Campsite for All the Time
That These Occupants Have Been on the Federal Land. Now, I Know That BLM
Charges for Campground ‑‑ Charges for Campground Use on its Developed
Campgrounds.

Shumaker: That Can Range Anywhere from \$2 to \$10 a Night, Sometimes a
Little More, Depending on the Facilities That BLM Provides.

Anderson: What You Might Do Is Take a Look at an Occupying Site And See
the Degree of Environmental Impact the Camping Has Had, Analogize it to
the Degree of Environmental Impacts Of Your Various Stages of
Development in Your Campgrounds, Figure out What the Nightly Rate
Probably Would Have Been for That Environmental Impact on the ‑‑ on
Federal Land and That Becomes Your Damages Claim. Another Thing That You
Can Get Is the Cost to Restore, Repair, Remove, Clean up the Site.
Let\'s Look at Two Slides down. This Slide Shows an Occupying ‑‑ An
Occupancy Trespass Location And We Have a Lot of Junk Piled Up and It\'s
Going to Cost Somebody Some Money to Remove That, Especially When You
Consider a Lot of These Occupancy Sites Are Remote. They May Be Many
Miles of Dirt Road. Sometimes Pretty Rough Dirt Road. Getting this Stuff
in and out of There, Getting Heavy Trucks and Forklifts and All That,
Can Be An Expensive Proposition. So Turning That Site into What The Site
Looked like When it Was Cleaned up Cost Us a Pretty Penny, and That
Pretty Penny Is Something That We Can Claim in Damages in Civil
Litigation.

Shumaker: How Would We Keep Track of the Costs? How Would We Document
What We Spent on It?

Anderson: the Evidence of Damages, We Can Talk about That Right Now.
That\'s a Good Point. If I Were Managing an Occupancy Trespass and We
Were Looking to Do Anything like This, I Would Start Now with a
Financial File And in That File I Would Put the Cost ‑‑ the Man Hours
That Are Dedicated to Managing That Site. How Many Vehicle Trips Were
Taken out to That Site over the Course of Time. And Then Any Receipts
Involved, If You Have to Hire or Contract Out Some Movers or Heavy
Equipment Operators or Hazardous Waste Cleanup People, Whatever You Have
to Do to Get the Site Cleaned Up, Keep All of Those Receipts in a
Financial File, Because That Becomes Your All Put Together Body of
Evidence on The Damages for That Portion of Your Claim.

Shumaker: like They Say, When You Buy a Refrigerator, Save the Receipts
for Your Warranty?

Anderson: Yeah and I Would Have A File for Each Expense, Just Always
Plug All That Stuff into That File. Then When You Finally Get Ready To
Seek Civil Action, If You\'re ‑‑ Your Other Steps Short of Litigation
Fail to Clean up the Problem, You Have Your Evidence All Handy. A Third
Category That Also Would Fit into That Financial File Is Your
Administrative Costs and That Would Include Your Man Hours and Your
Vehicle Use, Any Other BLM Resources That You Can Put a Dollar Value on
That Have Been Consumed in Trying to Manage That Occupancy Site.
Something That I Know Was Mentioned That You\'re Going to Hear about
Tomorrow That Can Be Available Is a Certified Estimate of Damages from a
Registered Professional Engineer. That\'s Going to Be Good Evidence Of
What Our Clean‑up Costs Are Or Are Projected to Be. Ideally We Would
like to Get the Civil Litigation Started Perhaps Even Before the Site Is
Cleaned Up So That We Have a Chance of Getting a Court Order Requiring
The Occupant to Clean up the Site First. That Can Be the Most Effective
Way of Doing It.

Shumaker: That\'s a Good Point. That\'s about the Credentials of People
That Will Be Providing Information to the Court. You Have Pointed out
the Registered Engineer Who Would Provide a Cost Estimate. But Also in
BLM When We\'re Looking at These Cases, We Send What We Call a Certified
Mineral Examiner to Do Sort of a Report On Whether the Uses Are
Reasonably Incident. Do You Think That Would Be Helpful in Litigation?

Anderson: Yes, We\'re Going to Talk Later ‑‑ We Can Talk Now About the
Need to Have Good Eyewitness Accounts of What\'s Been Going on at the
Scene, and I Would Be Anticipating Something We Talked about Just Before
We Went into this Broadcast, but One of the Things That We Might Need Is
If You\'re Going to Have Someone Evaluating Sanitation or Health and
Safety Material or Building Code Kinds Of Things or Electrical
Connections, You May Want to Have Your County Building Inspector or
Health and Safety Engineer, Your Sanitation Supervisor from the County,
or Someone from the Utility Company Who Knows How Wiring Should Be Done,
or in the Case, If You Are Evaluating Mining Activity, Someone Who Knows
about Mines. You Need to Have Someone Who Knows These Things Evaluating
Them for the Court to Find That Evidence Persuasive. When Someone Who
Has No Background in Electrical Connections, like Myself, Comes In and
Says \"Oh, Look, That Wire Shouldn\'t Be There,\" the Court Is Going to
Say, Well, Why Not? What Does She Know about Wiring? So You Need to Find
the Appropriate People to Tell Your ‑‑ to Tell the Court What the
Evidence Means. It Has to Be People with Expertise.

Shumaker: Ok. We Will Be Visiting That Again In a Little While.

Anderson: Some More Things That You Can Get in Civil Litigation Are
Permanent Injunction, Which Can ‑‑ Is like the Temporary Injunction, You
Can Get up Front Is a Permanent Order That Says And Furthermore You Can
Never Dig That Mine Shaft Anymore Until the BLM Has Approved Your Plan
of Operations and You Have Installed Appropriate Safety Equipment. The
Court Order Can Say, You Know, Don\'t Come Back onto the Land to Do
Anything until You Have a Plan, Permit under 3715 Or a Notice ‑‑ I Know
You Have Plan and Notice Level Operations, and I\'m Getting Those Things
Confused with the 3715 Permit, but You Can Ask the Court to Make Sure
the Occupant Doesn\'t Come Back to the Federal Land until He\'s Complied
with Your Regulations, and That\'s What You Want. And One of the Most
Handy‑dandy Little Tools We May Have Is to Ask That the Court Order That
The BLM Doesn\'t Need to Consider The Occupants\' Subsequent
Applications, Either Plans of Operation or 3715 Applications Until the
Occupant Has Made Good On Any Damages That the Court Has Awarded for the
Occupants\' Earlier Trespass and Nuisance Problems. What That Can Do Is
it Means You Are Going to Make the Occupant Accountable for What He Has
Done In the past Before You Start Engaging in a Future Relationship with
Him on the Public Land. It Can Slow People down. And People Who Really
Aren\'t Trying to Use the Public Land For Legitimate Mining Operations,
but Just as a Rent‑free Place to Live, May Be Persuaded to Try to Make
Some Other Accommodations, Some Lifestyle Changes So That They\'re More
Responsible for Their Own Upkeep and Aren\'t Occupying the Public Lands
Unlawfully. Some Other Things We Can Get in The Civil Litigation, We
Don\'t Have Our Law Enforcement Hat On, But We Have Our Land Owner Hat
On, and as a Land Owner We\'re Entitled to a Writ of Ejectment And Also
We Can Get an Unlawful Detainer. And These Are Both Court Documents We
Can Use to Get Someone off of the Public Land And to Have Them Take
Their Stuff with Them and Bring about An End to the Occupancy. Now, Even
Civil Litigation Is Part of a Step‑wise Procedure of Things That BLM Can
Do to Bring Occupancy/trespass to an End. It\'s Not the First Thing You
Jump to but It\'s Something You Might Jump to Before Going into Criminal
Prosecution of Someone. But You Are Going to First Try Letters and
Notices of Noncompliance and Requests and Site Visits and Listening
Sympathetically to Their Problems, Trying to Make Constructive
Suggestions, and Steering Them off the Public Land in a Nice Way, a
Persuasive Way to the Extent That You Can Before We Get into Litigation.
But If Those Softer Methods Have Not Been Effective, and with Some of
These Folks They\'re Not, Then Civil Litigation Is Ready To Help You Get
Them off. When You Get Ready to Bring a Civil Case, the First Question
That You\'re Going to Need Know Is Where Do You Bring It? What Office
Are You Going to Bring it In? The Heavy Favorite There, of Course, Is
Where the Land Is. Where Is the Subject Land. That\'s Usually Where the
Case Is Going to Be Brought. All of ‑‑ Just as BLM Has Divided the
Country into Regions, the U.s. Attorneys Are Divided into Regions, and
Your Law Enforcement People Will Know, If You Don\'t, What District of
the United States That You\'re In. Now, from about South of Sacramento
down to Bakersfield And from I 5 to the Nevada Border in California,
You\'re in The Fresno Division of the Eastern District of California. If
You\'re in Any of Our Counties, Then it Would Be the Fresno Office That
Would Eventually Handle the Litigation. There Is an Alternative, Though,
Especially If You Have a Relationship with a U.s. Attorney\'s Office
That Isn\'t ‑‑ That Isn\'t Working Right Now for To You Bring Civil
Litigation With Them, If You Have a Problem That That Office Is
Overworked And Understaffed and Not Able to Do Your Affirmative
Litigation For a While, There Can Be Alternative Venues That You Could
Explore, Particularly ‑‑ But Only Where Your Occupying Trespasser Has a
Permanent Residence or Principal Place of Business That\'s in Another
District, Because You Can Also Sue People Where They Live or Where They
Do Their Principal Work as Opposed to Where the Occupying Trespass Site
Is in a Pinch. It\'s a Fallback Position and it Isn\'t as Good as
Getting the Work Done Where the Land Is, Because Definitely for Both the
U.s. Attorneys and for the Court Where the Subject Land Is Is the Heavy
Favorite for Where To Bring the Litigation.

Shumaker: So in a Situation Where, for Example, We Had a Trespass
Problem For, Oh, in the Ventura, California, Area and They Were Too Busy
to Take It, But They Had a Permanent Residence in Reno, the District
That Handles Reno Could Potentially Handle the Case for Us?

Anderson: Right. You Can See People Where They Live or Reside or Do ‑‑
Have Their Principal Place of Business. So That Gives You an Alternative
If You\'re Looking for Some Other Place to Bring the Litigation Rather
than Where the Land Is.

Shumaker: We\'ve Had a Question That Came in from Salt Lake City That
Touches on That Problem and Here it Is My Experience That The U.s.
Attorney\'s Office Will Usually Not Get Involved Unless The Trespass
Involves High Dollars, Typically \$5,000 and Above. What Can We Do for
These Trespasses That the U.s. Attorney Is Not Interested In?

Anderson: I\'m Not Sure Whether You\'re Talking about Civil or Criminal
from the Context of This Question. I Can Tell You That Most U.s.
Attorneys Do Have Dollar Values On Many of the Crimes That They Will
Pursue. Those Values Will Vary from District to District Depending On
How Much Court Time Is Available and How Many Prosecutors Are Available.
The Busier the District, the Higher Those Dollar Values May Become. In
Terms of Civil Litigation, If You He Can Spleen to the U.s. Attorney
this Isn\'t Necessarily About Money, this Is about Vindicating the
Government\'s Constitutional Property Rights In Managing the Public
Land, the ‑‑ These Dollar Values May Not Be Critical in the U.s.
Attorney\'s Decision Whether to Take the Case Civilly, Even Though They
May Still Matter Criminally. Civilly ‑‑ I Would Also Suggest That If You
Have an Occupancy Trespass I Would Be Surprised If You Couldn\'t Figure
out at Least 5,000 in Damages Between the Rent, Your Management Costs
for Evaluating That Site over Time And the Potential Costs of Cleaning
the Site up If the Occupant Doesn\'t Clean it up Himself. I Think You
Would Be Able to Come up with a Bill That Would Be at Least 5,000.

Shumaker: I Would Think So. Look Carefully at Your Clean‑up Costs. These
Well May Be above 5,000. Tomorrow We Will Be Looking at Clean‑up Clips
of What Was Done In California. When You See What Had to Be Brought in
to Clean the Place Up, it Will Be Clear Very Quickly 5,000 Was Incurred
Soon.

Anderson: it Would Be Several Hundred to Get a Flatbed Truck And
Forklifts in 30 Miles out of Town at the End of Five Miles of Rough Dirt
Road.

Shumaker: this Is a Good Time For to You Consider Bringing in An
Engineer to Give a Cost Estimate, Even as a Quick and Dirty Cost
Estimate, a Lot of Bureau of Mining Engineers Who Understand Equipment
Could Do That Sort of Work Just to Figure Out What Ball Parker\' In.

Anderson: Remember, Too, One Thing, That U.s. Attorneys and Civil
Assistants Rotate. Maybe ‑‑ and Federal Prosecutors Rotate. It\'s Not
Always the Same People In the Office. Each Time Your Request Comes in
It\'s Possible It\'s Being Evaluated by Someone Who Really Isn\'t
Familiar with the Background of the Problem That BLM Has. So It\'s Not a
Bad Idea to Include in Your Request ‑‑ Find Out First Who You Are Going
to Be Talking To, and Is it Someone Who Is Familiar with Your Problems
or Is it Someone Who Has Newly Come to the Office. If They\'re New to
the Office, Do Them a Favor by Giving Them Some More Background about
What Your Problems Are, What Your Needs Are. Show Them the Iog Report.
Tell Them this Is What You\'re Trying to Do. If You Explain Your
Problem, I Think You\'ll Have a Better Chance of Getting the Relief That
You Need. I\'m Going to ‑‑ There Are Some More Faxes.

Shumaker: We Have a Couple Questions. I Think They\'re Pretty Good. We
Have One I May Hold for the ‑‑ until after the Break Dealing With Going
to the Local U.s. Magistrate. I Understand That If You\'re Going to Go
Civil the U.s. Magistrate Just Does Not Get Involved in this.

Anderson: That\'s True. When You File a Civil Case, It\'s Going to Be
Assigned to ‑‑ in Our District, Anyway, it Will Be Assigned Both to a
Federal Judge, a District Court Judge, And to a Federal Magistrate Judge
at the Same Time. Under Our Local Rules, Both of Those Individuals Will
Become Involved in the Case Dealing With Different Issues. But a
Temporary Restraining Order or a Preliminary Injunction in Our District
Would Certainly Be Handled by the District Judge and Not by the
Magistrate Judge. The Magistrate ‑‑ Your Law Enforcement People Are
Familiar With Going to Magistrates to Get Search Warrants Approved.

Shumaker: I Have a Question Coming in from Wenatchee and This Question,
I Have Heard a Bit about the Case That I Think They Are Referring To,
and this May Be Interesting. The Question Here Is: a Temporary
Restraining Order Is Fine Dealing with a Rational Person. However, That
‑‑ What Is the Recourse or the Penalty If Someone Violates the Tro or
the Permanent Restraining Order, Pro? Does it Switch to Criminal? Does
the U.s. Marshal Get Involved?

Anderson: I\'m Afraid Eventually The U.s. Marshal May Get Involved, but
I Can Tell You This, When the Court Has Issued An Order, Tro or
Preliminary or Permanent Injunction, and the Other Side Violates That
Order By Not Doing Something the Judge Told Them to Do or by Doing
Something the Judge Told Them Not to Do, Then the Assistant Will Come
into Court with a Motion to Have the Person Held In Contempt of the
Court for Violating the Order. Now, There May Be a Few More Proceedings.
We Are Going to Have to Prove They Were in Contempt. Once We Have Proved
That, They Can Now Do Jail Time or Be Fined Or Have to Pay Further
Compensatory Damages, Including All of the Costs That We Incurred in
Keeping Track of Whether or Not They Violated the Order. So We Have
Stepped up Proceedings Civilly. Then If They Continue to Violate, They
Will Become in Criminal Contempt of the Court And We Can Proceed
Criminally If It Comes to That. Now, at Some Point When the Orders Being
Served, for Instance, When Someone Civilly Gets Title to the Farm, and
They Go out to Take the Farm Away, Under State Law the Sheriffs Go Out
with the Person to Take Possession of the Property, and The Marshals Are
Our Sheriff\'s. So it May Come to That. But We Would Certainly Be
Wanting to Work Early on to Avoid Having the Situation Arise. I Know
There Are Instances Where It Is Inevitable, but We Would Certainly Want
Everybody at Very High Levels to Be Involved in That, for Instance. If
We Have a Situation That\'s Going to Go That Way, the U.s. Attorney, the
Regional Solicitor, the Solicitors in Washington and the U.s.
Attorney\'s Representatives in The Department of Justice in Washington
Are All Going to Want To Be Involved in That Case to Make Sure We Have
Tried Every Other Means Short of War Before We Have That.

Shumaker: I Have to Agree. In Fact in a Situation like This, If the
Chain of Command in the Bureau Should Also Be Apprised Of the Situation.

Anderson: Definitely.

Shumaker: These Tend to Have News Channel 8 Show up at 6:00 ‑‑

Anderson: the U.s. Attorney\'s Offices Do Not like to Find out What\'s
Going on in There Office On the News and I Am Sure No Other Federal
Managers Do, Either.

Shumaker: I Have a Quick Question Also from Wenatchee, The Home of
Apples and Really Good Questions. Material Equipment and So Forth
Removed in the Cleanup Effort, Does That Have to Be Kept Secure By BLM
Before a Civil Case Goes To Trial or Can it Be Disposed Of? I Have a
Feeling this May Be Backward.

Anderson: Can I Hold onto this? Let Me Ask a Few Things. If You Have
Seized the Evidence As ‑‑ Material as Evidence, You Have to Keep a Chain
of Custody And Keep the Secure. If You Have Seized it in Terms Of
Impoundment, I Think That Your Regulations Provide That You Have to Give
the Person a Certain Amount of Time to Get The Material Back out of
Impoundment. While it Is in Impoundment, it Is Your Job to Keep it
Reasonably Safe and from Decomposing or Getting Wet, Whatever Can You Do
to Keep it As Secure as it Was When You Took it from Where the Occupant
Had Left It.

Shumaker: That\'s Not Always Very Secure in Some Cases.

Anderson: Right. If He Left Something That\'s Going to Rust out in the
Rain, It\'s Not Your Job to Keep it From Rusting Further. But after You
Have Given Them Notice about Their Ability to Get it from Your
Impoundment Yard after a Certain Period of Time ‑‑ I Am Sorry ‑‑ Within
a Certain Period of Time, If at The End of That Period They Haven\'t
Collected It, Your Regulations Do Authorize You to Dispose of the Proper
by Sale or ‑‑ the Property by Sale or Whoever Can You Pay to Take it
Away. If You Have to Pay to Get Rid of Some of this Stuff, by the Way,
That Goes in Your Financial File, Because Those Are Damages You Can
Collect from the Occupant.

Shumaker: We Will Be Coming Back To this after the Break with Dennis
Mclane Who Has, I Believe, an Overhead That Shows This. It\'s a
Recurring Issue We Deal With and We Will Look at it Tomorrow.

Anderson: There Is a Lot of Variations on this Problem. For Instance,
What If You Don\'t Know the Owner? That Sort of Thing. I Recommend ‑‑ My
Fallback Is Talk to Your Solicitors If You Have a Question about That.
But You Do Not Have to Live Around it Indefinitely, If That Was the
Question. I Am Going to Move onto the Second Element Here, Jurisdiction.
The Only Little Point I Want to Cover Here Is That There Is the
Possibility That If a Piece of The Action Is at the Interior Board of
Land Appeals, for Instance, You Have Issued a Notice of Noncompliance
and It\'s Been Appealed to the Ibla, There Is a Possibility That There
May Be a Little Problem with Jurisdiction. The Lawyers Will Have to Work
it Out. You Don\'t Need to Know Any More About it than this. If a Piece
of Your Action Is at Ibla, If You Had a Notice of Noncompliance Appealed
or Any Other Aspect of the Mining Claim Management Is Brought this
Occupant into the Ibla, Do Let The Solicitors and the U.s. Attorney\'s
Office Know So That They Can Decide Whether It\'s a Problem That
Broaches on Giving Us a Jurisdictional Headache. There Is a Caveat for
Some of These Laws and I Want to Point This out. At this Time There Are
Some Complicated Environmental Statutes in the United States. Cercla and
Recra and Fifra and The Clean Water Act and Clean Water Act.

Shumaker: Linda, I Think a Lot Of People ‑‑ this Isn\'t the Quiz.

Anderson: What Does Cercla Mean?

Shumaker: I Am Pleased and I a Know a Lot of People Will Hear An
Assistant Attorney Agree with Us These Are Complex Laws.

Anderson: Is That Not the Party Line? I Think the Laws Are Complex and
So Does the Department of Justice, I Gather, Because They Right Now Are
Handling Prosecutions under Those Laws, And the Local U.s. Attorney
Isn\'t Going to Be Handling The, At Least Without the Concurrence And
Assistance of Department of Justices, Environment and Natural Resources
Division, They Won\'t Be Filing Claims under Those Environmental
Statutes. So If You Have Got a Site That Has Been Used as a Toxic Waste
Dump under the Table for Lo These Many Years That You Just Found out
About, That Is Something That When You Bring Into it Your U.s.
Attorney\'s Office, They Are Going to Be Immediately in Touch with What
We Call Enrd, the Environment And Natural Resources Division, Because
Those Are the Folks That Right Now Have the Delegated Authority from the
U.s. Attorney General to Prosecute under Those Laws, and the U.s.
Attorney\'s Office Do Not, I Believe, at Least Civilly We Do Not. You
Will Want to Get Your Solicitor\'s and the Washington Office of
Solicitors Would Want To Be Involved in That, Too and You May Also Get a
Reference Over to the Epa, Because the Epa Is the Subject Matter
Specialist In Those Laws.

Shumaker: Once Again, Once We Go As Big Interagency as This, People
Would Also Want to Apprise the BLM Chain of Command.

Anderson: Yes. I Am Leaving out the BLM Chain Of Command Because I Feel
like I\'m the Token Lawyer on the Show And I Am Mostly Talking about
What You Need to Tell Your Lawyers and I Am Assuming You Guys Know What
to Tell Your Managers. So It\'s a Good Thing Matt Is Here to Keep Us
Honest. Common Law Causes of Action. These Are Things We Can Sue for.
These Are Some of the Big Guns We Have Civilly That We Don\'t Have
Criminally. Trespass. All We Have to Show Is We Own The Land. That\'s
Pretty Easy in Most Cases. Sometimes It\'s Not. We\'ll Talk about That.
The Occupant Does Not Have Any Claim of Right to Occupy the Land. That
Is, You Haven\'t Given Him a Life Term Plan of Operations Authorizing
Occupancy under Any Conditions. And Another Alternative Is You Have
Given the Occupant a Right To Be on the Land but He Was Allowed to Keep
a Watchman There And Instead He Has Built Three Condominiums. He Is
Doing More than He Has Been Authorized to Do. All We Need to Show Is
That and We Can Establish Our Trespass Case and We Can Get Rent, We Can
Get Cleanup, We Can Get a Writ Of Ejectment to Get Them off the Land.

Shumaker: in That Latter Case Where We May Have Given Authorization for
a Watchman and They Moved in Three Condominiums, Which Are Generally All
Travel Trailers, Would We Be Within Our Rights to Get Everyone Ejected
Including The Watchman or Just above the Watchman.

Anderson: in My Opinion, You Are Going to Need an Order Against
Everybody Who Is There That You Know Who They Are There. I Am Not Sure
What We Do with The Flux of People Coming and Going and We Don\'t Know
Who They Are. What We Want Is an Order Whoever Is Sort of Managing the
Camp, The Notice Location Owner, the Record Person Whose Mining Claim
This Is, That He Is Enjoined From Giving Permission to Any Other People
to Live on the Site.

Shumaker: Would He Also Lose His Privilege to Be There Himself as A
Watchman or Could He Also Lose That ‑‑

Anderson: If He Is Not Mining, If We Can Show It\'s a Bad Faith
Occupancy or He Is Not Mining or Doesn\'t Need the Watchman, Then We Can
‑‑ He Could Be Included In the Ejectment Order as Well. But Our ‑‑ I Do
Have a Case That\'s in Litigation, One That Was in the Bankruptcy There
for A While, Where the Gentleman Has Had a Number of Different People
Living on the Site from Time to Time. We Know Some of Their Names. I\'m
in Fact about Ready to File A Complaint to Name Those Additional
Gentlemen and Try to Get a Writ of Ejectment Against Them as Well. But
We Also Think He Has Been Bringing in Other People from Time to Time. I
Think All I Can Do There Is Get an Order Against His Giving Permission
to Anyone Else to Be There. Nuisance Is Another Common Law Gun We Can
Bring. Nuisance, Though, We Are Going To Need to Show There Is Some
Unreasonable, Unwarranted or Unlawful Activity Going On. Something
That\'s Dangerous or Noxious or ‑‑ That Might Include Something That\'s
Prohibited Under the County Codes Governing Health and Safety. Maybe
Also Building Codes, Fire Hazards, Electrical Hazards. And Any Kind of
Mining Operation Or Quasi‑mining Operation That Might Be Dangerous. And
Nuisance Is Another Action And, Again, We Can Get an Order To Have That
Nuisance Brought to A Halt.

Shumaker: We Just Had a Comment From the Utah State Office, the Special
Agent in Charge Is Reminding Us We Need to Notify BLM Law Enforcement as
Soon as Possible of Any of the Really Nasty Situations You Were
Describing under the Various Environmental Laws Because They Need to
Know. It\'s Important. Keith, Thanks Very Much for Letting Us Know about
That. Again, If You Have Got Something To Say, Let Us Know. We Sure Want
to Hear from You.

Anderson: I Am Going to Shuffle Paper for a Second. Once We Have Figured
out What Our Causes of Action Are Going To Be and That\'s Going to
Include Nuisance and Trespass, Plus Counts or Claims Based on Violations
of Federal Regulations and Statutes, Then We Have to Tell the Court What
It Is We Want, and That\'s Going To Be Where We Say We Want Damages. We
Want Maybe a Preliminary Injunction If There Is Something Up Front We
Want to Get Brought To a Stop Right Away, a Permanent Injunction Would
Be Something Else We Would Ask the Court for.

Shumaker: I Have a Question in From Vernal and I Am Going to Hold this
One up Here Because I Think We Will Be Asking Most of The People on Our
Panel These Very Same Questions. This Is ‑‑ I Recognize the Printing,
but since the Author Didn\'t Put His Name Down, I\'ll Respect His
Privacy. When We Involve Enforcement Personnel in Use and Occupancy
Cases, Do We Find They Are Predisposed to Going Criminal Versus Civil?
Do You Have an Observation on That?

Anderson: I Think You\'re Asking Me What Happens in the BLM Offices, and
I\'m Afraid I Don\'t Have Much Insight on That. I Know That the Criminal
Folks Are Probably More Used to Dealing with the Federal Prosecutors
than the Civil Assistants, If That\'s What You Mean.

Shumaker: Definitely When ‑‑

Anderson: but in Our Office the Prosecutors Make a Lot of Referrals
Overall to the Civil Side When They See Something They Think Should Go
Civilly More Often.

Shumaker: I Think I Will Hold This Discussion until Our Panel Discussion
this Afternoon. This Touches on a Little Piece Of What Everybody Does.
So in Vernal, Stand By, We Will Get to You Right after Lunch.

Anderson: Moving On, I\'m Going To Just Briefly Cover Those Other Counts
That We Can Bring. I Mentioned That in Addition to Nuisance and Trespass
We Can Talk about ‑‑ We Can Bring Claims Based on Statutory and
Regulatory Violations. Whatever the Statute or Regulation Says You\'re
Not Supposed to Do Is All We Have to Show to Show the Violation.

Shumaker: We\'re on Page A‑7 of Your Written Material as We Cover this
Part Here, in Case You Have Gotten Lost.

Anderson: These Elmo Cards Are Pretty Much All in Your Written Material.
The Written Material Covers a Little More Ground than the Elmos Do.

Shumaker: It\'s All There.

Anderson: the Remedies We Can Get for Violations of the Statutes and
Regulations Include Both an Injunction or an Order That They Do Whatever
the Regulations Say, or Not Come Back onto the Federal Land until They
Have Done What the Regulations Require, and Also Any Penalties or Costs
That the Statute or Regulation May Authorize Us to Obtain. I\'m Not Sure
‑‑ I Haven\'t Seen a Lot of Civil Damages Elements in Your Regulations,
but That\'s Why We Have the Nuisance and the Trespass Claims, Because We
Can Get Them There. Now, Let Me Talk Briefly about The Laundry Lis of
What You Need To Bring to the U.s. Attorney. We Want to See a Good
Referral Package, and I ‑‑ in Your Handout You\'ll Find a List of What
Is Included in a Good Referral Package. The First Thing a Good Referral
Package ‑‑ Well, the Better Your Referral Package Is, the less Work
You\'ll Have to Do after the Case Is Filed, and the Happier Everybody
Will Be with You, Because a Good Referral Package Is Not Just Going to
Cover All The Hard Spots in the Swamp of Evidence. It\'s Also Going to
Tell Us Where The Soft Spots Are, and We Need To Know That Before We
Enter That Swamp as Well. First of All, a Good Referral Package Will
Start out with a Letter from the Regional Solicitor to the U.s. Attorney
Asking That Civil Litigation Be Brought. This Is Absolutely Essential,
And It\'s Why You Need to Bring The Solicitors in Early in Your Case as
Well as Somebody in the U.s. Attorney\'s Office, Because We Can\'t Go
Without That Written Request from the Solicitors. The Second Thing That
We like to See in There Is up Front a List Of the Points of Contact in
the Case. That\'s Not Just Going to Include The Solicitor, Probably, but
We Will Certainly Need the Solicitor\'s Name and Phone Number, but Also
the Field People, the People in the Resource Area Office or the Field
Office or the District Office That Are Going to Be Knowledgeable about
this Case So That If We Have Some Fact Questions, If There\'s Something
In the Package You Don\'t Understand, We Have a Ready Reference to Call
That Person Up. Remember, the Whole Deal Here Is You Want to Make These
People Find it Easy to Work on Your Case and I\'ve Had Cases Come in
Where They\'ve Come in with a Letterhead That Doesn\'t Have a Phone
Number on It, and There\'s No Phone Number in the Letter. So I Have a
Question about the Case. The First Thing I Get to Do Is Call That
City\'s Commercial Phone Operator and Start Trying To Find a Particular
Government Office, Usually by Some Acronym, Through the Municipal
Directory, And That Doesn\'t Make it Easy For Me to Work on That Case.

Shumaker: Sort ‑‑ That Sort of Omission in My Opinion Is Completely
Inexcusable.

Anderson: I Have Sent Packages Back Saying this Referral Is Incomplete
Because it Doesn\'t Have Your Phone Number in It. I Try Not to Do That,
but I Did It Once, Because They Indict Repeatedly to Me and I Got Mad.
The next Thing We\'re Going to Need Is a Statement of the Case And this
Is Your Chance to Show ‑‑ this Is like Your Five Minutes to Convince the
Person They Should Take the Case. You Don\'t Need to Cover All of The
Details. You Are Going to Be Covering Those Details in Attachments to
This Statement. But this Is Where You Answer the Question: Why Should We
Litigate this Case? You Can Start Out, There\'s Someone on Our Land, and
this Is Bad Because, and Why You Want Them ‑‑ Why You Want an Order to
Get Them off. Take One or Two Pages, but If You Have Done this Well,
this Will Convince Your Solicitors to Go Ahead and Check out the Rest Of
Your Package and Then Refer It On. It Will Convince the Attorney
Reviewing it in the U.s. Attorney\'s Office That this Needs to Be
Litigated. And the U.s. Attorney May Just Take Your Very Statement and
Turn it into a Brief. So It\'s Going to Go to the Court To Convince the
Court That We Need the Relief We\'re Asking. So That\'s Your Chance to
Make The Case. Now, the Rest of Your Referral Package Is Going to Be
Back There in the Swamp of Evidence, And You\'ll See in the Handout And
in These Cards That I Will Be Using an Asterisk, and That Asterisk Means
That I\'m Going to Need the Name and Phone Number Of the Witness That\'s
Going to Get That Information into the Court. Then There\'s Some
Information That We Really Need to Know, and That Is Whether this Is
Firsthand Knowledge. I Need the Witness That Has Firsthand Knowledge, If
at All Possible. If There\'s Photographs, I\'ll Need to Know Who Took
Them and Where They Are Now, Because If Your Personnel Have Rotated,
Gone to Other Offices, We Will Certainly Want to Be Finding the Guy That
Took the Pictures at The Time of Trial If We Need to Call Them in to Get
the Pictures Into Evidence. Now, You Can Get Information in Your Records
into Evidence Without the Personnel That Put It There If Your Records
Are Maintained in the Standard Course of Your Business, and Your
Business Is Managing the Public Lands and Managing Mining Claims. So
Your Mining Claim Files and Their Contents Can Be Admitted Into Evidence
Even Without the Particular Employee Who Filled Them Out, but That Gives
Us Something Else We Need to Talk About Here. The Better That Paper Work
Is And the More it Stands on its Own, the More Helpful it Will Be As
Evidence Even after Your Employee Who Filled out That Form Has Gone On.

Shumaker: Once Again, the Best Test of a Case File Is That Someone Who
Knows Nothing about The Case and Really Doesn\'t Know That Much about
the Law Can Start at the Beginning and Get To the End and Actually
Understand What the Problem Is.

Anderson: Yes. Something That Stands Alone Is Always Going to Be a Good
Idea. So Whenever There Are Photographs in the File, the Photographs
Should Be Labeled, What the Mining Claim Was, the Date They Were Taken,
Who Took Them, and What the Picture Was Taken to Show.

Shumaker: If We Can Bring up Slide 509, and this May Take a Minute, but
It\'s Worth Doing, We Have an Example of Something Pretty Well Done. In
this Particular Picture, and You Will See this Probably Again Tomorrow,
this Was Done by Ridgecrest Resource Area, What You See Is Photographs
Mounted On a Page. The Fuzzy Lines on Your Television Show Who Took the
Photograph, What Roll Number it Is, What Frame Number it Is, the
Direction it Was Photographed, What the Photograph Shows and Why It\'s
Important, and I Don\'t Know ‑‑ I Have Lost Count of How Many Times
People Have Sent Me a Case File to Review Where I\'ve Opened the Case
File and Pictures Fall out on the Floor. I\'ve No Idea What the Picture
Is Of, No Caption on the Front, Back or Anything. It Looks Ugly. I Can
Tell You That for Sure. I Send it Back. That\'s a Hopeless Case. You
Need to Have These Things Mounted and Captioned So I Can Figure out or
So That Anybody Can Figure out What They Are. Anyway, Thanks.

Anderson: Something Nice about That Slide, Too, Is That the Label Is on
the Same Side as the Picture Instead of on the Back Of the Picture. What
That Means Is That You Don\'t Have to Worry about Later On in the Case
Having Somebody Copy These Materials and Not Get The Captions Copied or
Get the Captions Mixed up with Different Photographs. If You Can Label
the Photograph On the Same Page with the Photograph, That\'s the Ideal
World.

Shumaker: Last Year in this Course We Sent out Some Sample Reports Done
by Our Certified Examiners on These Particular Cases, and They Had
Photographs In Them That Are Captioned Just Like than That, on the Page
and Once it Gets Photocopied, the Photograph Is Muddy, but the Caption
Is Good Enough That it Describes the Mud.

Anderson: These Days with Color Copiers, You Could Take That Page, Lay
it on the Color Copier, Make the Print, and You Would Be Able to Use
That Photograph in the Litigation in That Way. Also on Photographs, Let
Me Remind You, Too, Keep Those Negatives. Keep Them Labeled and Keep
Them Secured in an Envelope in the Case File. I Think It\'s Going to Be
Important in the Future to Have The Negatives Because the Way People Can
Edit Pictures Nowadays, Put Forest Gump in the Same Room with President
Kennedy, We Will Have Increasing Problems of People Blowing Smoke By
Challenging the Authenticity Of Photographs. If You Have the Negatives,
it Will Be Maybe Another Six Months Before People Can Fake up Negatives.
So Let\'s Keep Those Negatives Handy. The next Thing You Are Going to
Want in Your Package to the U.s. Attorney Is a Statement of the Case.
The next Attachment to Your ‑‑ Attachment to Your Statement of The Case
Is the Key Statutes That Governor the Matter and the Key Regulations
That Govern the Matter. This Is Something You Would Think Lawyers Would
Know and This Is Something Your Solicitors Can Help You by Adding to the
Package, but I Know That in the Field You Guys Use Handouts or Packages
That Come in from ‑‑ Within Your Agency and Usually Those Are Going to
Talk about Statutes and Regulations Published in Different Forms than
the Final Published Form of the Statute And Regulation That the Court
Will Be Looking At. If It\'s at All Possible, It\'s Much More Convenient
for Everybody down at the Courthouse, Including the U.s. Attorneys, If
You\'ve Translated Your Statutes and Your Regulations into the Final
Published Versions, That Is, the U.s. Code and the Code of Federal
Regulations as Opposed To Public Laws and Federal Register Publications.
Now, a Real Recent Regulation, a New One, Will Only Be Available In the
Federal than Register, But Most Statutes Within a Very Short Period of
Time Have Been Codified and There Are U.s. Code Citations Available and
That\'s What the Court Is Going To Be Looking for. So It\'s Helpful If
We Can Get The Information in That Way. Another Thing to Keep in Mind Is
If for Some Reason the Way ‑‑ These Occupancy Trespass Cases Can Last a
Long Time, and During That Time Your Regulations Can Change. A Lot of
Offices, Including a Lot of Courts, Don\'t Have Readily Available to
Them the CFRs for All of the Preceding Years. The Code of Federal
Regulations Is Republished Every Year over Time. Every Year Our Book
Sets Are Full of Pink and Red Volumes Because the Red Ones Get Thrown
Out While Newt Greens Ones Come In. Every Year There Is a New Set of CFR
and We Don\'t Have All Ones Available. So If There Is Some Older
Regulation Relevant to Your Case And You May Find in These Occupancy
Trespass Cases That Your 3809s Still Have Bearing Because That Was How
You Were Governing That Site until 3715 Came into Effect, We Will Need
Copies of the Old Regulations Attached to this Package So That We Don\'t
Have to Worry about Trying to Find Them in the Courthouse. We Don\'t
Always Have Good Access To the Older Ones. The next Thing We\'ll Want,
and I\'ve Seen a Lot of Good Chronologies Prepared by BLM, So I Am Not
Going to Cover That Topic Long, Is a Chronology of The Case. This Is
Going to Be Very Helpful For Everybody New Trying to Wrap Their Mind
Around the Facts of This Case So They Can Litigate It or So the Court
Can Make the Decision. That Chronology Is Very Helpful. Keep up the Good
Work on Those. The next Element and Again We\'re Back to Needing a
Witness, Now We Need That Witness Who Can Talk about This, Is the Land
Status, Why Sit Public Land, a Map Showing Where That Claim In, And
Showing That It\'s Public Land, and If There\'s Any Questions about That
Land, Are There Any Easements out There That Belong to Anyone Else, Are
There Any Other Mining Claims That May Have Been Overfiled Over the Same
Site, Is the Area Subject to Withdrawal, Has the Area Been a Designated
Wilderness Study Area. All Those Questions about the Land Status, We
Need to Have All That Information So It\'s Ready Reference for Us There.
If There\'s Any Questions about That Land Status, Do Let Us Know. I Know
We Have a Problem in Northern California with a Lot Of Fraudulent
Surveys from the 1870s by the Benson Syndicate, And I Have Run into
Those Problems in Some of My Litigation. I Don\'t Know That That Is
Going To Be a Problem in Your Particular Case, but Where We Have a
Question about That Original Government Land Office Survey, Do Let the
Attorneys in The Case Know So That They Won\'t Be Taken by Surprise by
It, by The Defendant in Court. The Courtroom Is Not the Place For Us to
Find out about a Problem in Our Case. We Want to Find out about it in
The Referral Package So That We Can Anticipate it and Deal with It. The
next Thing We\'re Going to Want to Know Is the Nature of The Mining
Claim, Including Copies of the Mining Claim Location Papers. This Is
Element 3. We\'ll Certainly Want the Location Notice. We\'re Going to
Want Those Annual Filings. I Am Sure I Have Used the Wrong Term There.
And We Will Also Want to Know Any Other Documents about That Mining
Claim. Has There Been a Patent Application, for Instance? Those Are the
Kinds of Things We Would Want in That Section. Let Me Make a Little
Caveat Here. I\'m Talking about the Kind of Thing That I\'d like to See
and That the People in Our Office Would like to See. There May Be Other
U.s. Attorney\'s Offices That Have Different Requirements. These Are Not
Department of Justice Standards. This Is Just My, Based on My Experience
Working with These And Other Cases, What\'s Helpful For Us to See in the
Referral Package. So If You Run into an Assistant U.s. Attorney Who
Wants Something Else, They\'re Not Wrong, and Obviously You\'re Going to
Do What They Want If They Are Taking the Case for You. I Know When I Get
a Package That Looks like This, I Am Impressed And Pleased and it Makes
My Job Much Easier, and That\'s the Experience I Am Sharing with You
Here. Now We Turn to the Two Really Nitty‑gritty Things. This Is the
Heart of the Swamp Of Evidence. The First Is the Nature of the Current
Occupancy, And, Really, I Could Have Written this the Same, the Nature
of the Current Mining Activities on the Site. It May Be Much You Will
Mush These Together. But If You Find it Convenient to Talk about Them
Simultaneously, Just Combine These Two Elements. If You Find it
Convenient to Talk about Them Differently in Series, Take First One and
Then The Other, in Any Order, Really. It Doesn\'t Matter. The Thing Is
We Have to Have What You Have Seen on the Site Over Time Because That\'s
the Evidence That We\'re Going to Be Leading the Court Through to Get
The Court to See the Problem Our Way So That We Can Get the Order To Get
the Occupancy Brought to An End.

Shumaker: to Assure Credibility, One of the Thing the Bureau of Land
Management Is Doing Is Requiring What We Call a Certified Mineral
Examiner, Which We Mentioned Earlier, to Look at the Situations You Have
There in 3‑g, and in That Case, The Certified Mineral Examiner Has a
Minimum Amount of Education and Experience So That They Have the
Credentials, We Would Hope, to Say That They Know What Mining Looks like
and What Mining Doesn\'t Look like. Would That Sort of Thing Be Helpful
to You?

Anderson: Yes, Any Time You Have An Evaluation by Someone Who Has The
Credentials to Make the Evaluation, It\'s Going to Help The Court and
Convince the Court That the Evaluation Is Correct. That\'s Back to My
Giving Evidence about Whether an Electrical Connection Is Adequate or
Not. I Have No Expertise in That Area, So the Judge Isn\'t Going To
Believe Me When I Say the Connection Was Wrong. Similarly, Someone with
No Background in Mining Who Says There Was No Mining Going on out There
Is Going to Be less Credible for the Court than Someone Who Says, Yes,
I\'m a Certified Mining Engineer, I Have 10 Years of Experience, I Have
Surveyed 150 Mining Claim Occupancies, I\'ve Worked at Mines, I Know
What Mining Looks Like, and this Is Not It, Now The Court Is Going to
Have a Better Time Finding in Our Favor Because We\'ve Given the Court
Convincing Evidence Rather than What We Wish Would Be the Case, Which Is
That Whoever We Can Send out There Could Just Go and Testify. It\'s Got
to Be Who ‑‑ to Be Somebody Who Knows.

Shumaker: it Works Both Ways. The Occupants Will Sometimes, If You Send
Somebody out Who Doesn\'t Know What Mining Looks Like, I Have Seen
Occupants Who Have Tried to Snow Me and They Have Impressive‑looking
Equipment and If You Don\'t Know What the Equipment Is for and Whether
or Not it Will Work, It\'s Possible to Believe Them And an Occupancy
That Shouldn\'t Be Concurred with Does Get Concurred with. I Receive We
Have Some Photographs.

Anderson: Yes, I Want to Go to a Photograph. Let\'s Talk about the
Nature of This Evidence in 3‑f and 3‑g Is Going to Be Greatly Enhanced
by Photographs. When You Take a Look at this Scene That We Have up Now,
a Verbal Description of What\'s There Isn\'t Nearly as Compelling Or as
Efficient a Way of Bringing That Information to the Court\'s Attention
as this Photograph Is.

Shumaker: How Could You Describe That in Writing? It Would Be a Book.

Anderson: it Would Be a Lengthy Description That People Would Be Tedious
to Read, Whereas the Picture Is Sort of Interesting, Where You Try to
Figure out Who Could Be Doing What with What Stuff, and the Pictures Are
Much Better a Way of Showing What\'s Going on and What Isn\'t Going O I
Will Talk about in That a Second. One Thing about this Picture, I Have
Seen Some of the Forms You Are Going to Be Talking about Tomorrow That
People Are Proposing to Use for Evaluating Occupancy Sites, and Some of
Those Forms Are on Some of the Pages of Your Handout like Page G‑23,
G‑24, G‑21, G‑19. Those Are Forms.

Shumaker: Have a Look at Those Tonight Before You Come Back to Our
Session in the Morning So You\'ll Have an Idea What We\'ll Be Talking
about. Those Are Some Suggestions from Some Districts for What You
Should Be Looking for During Inspections.

Anderson: Could You Hand Me a Copy of One of Those Forms? I Want to Put
One of Those Forms Up on the Elmo Just to Make Sure The Control Room in
the Studio Is Awake, Because We Didn\'t Practice this. It\'s like G‑20.

Shumaker: Let\'s Do G‑19. It\'s Kind of Busy.

Anderson: You\'re Not Going to Be Able to ‑‑ Let Me See If I Can ‑‑ I\'m
Not Going to Try to Bring This in Focus Because it Makes My Point
Better, I Think, Looking at it the Way it Is. But this Is One. Electric
List Forms and this Is Going to Be Very Useful, but You Can Imagine How
If You Simply Checked Yes, There Are Structures on the Site, That Isn\'t
Nearly as Informative or Compelling to the Court as Showing Them That
Last Slide We Had Up, Which Shows Those Ram Shackle Structures Put
Together On the Site. So in My Opinion, on this Form, One of the Most
Important Items Is Item 24, Which You Can\'t Read, but I Will Read it
for You, Says \"Photos Taken.\" The Answer There Should Usually Be Yes.
Lots of Photos Are Taken and They\'re Attached. It\'s Those Photographs
‑‑ You Can Imagine the Gentleman Who Checks Yes on this Form, When He\'s
Gone, That Check Mark Of, Yes, There Are Structures There Isn\'t Nearly
as Helpful as That Photograph of the Structures.

Shumaker: Those Photographs Again Need to Be Photographed, Mounted and
Captioned, Because Loose Photographs with No Captions Are Worse than
Useless.

Anderson: Especially When Your Personnel Has a Turnover and the New Guys
Aren\'t Familiar with What All the Cabins Looked like Over Time on These
Sites. They May Not Even Know What Site It Is Depending on How Much
Change the Occupant Made over The Time. If We Go to Another Slide, We
Will See Another Helpful Thing To View. Something That Could Be Helpful
Here Is Not Only to Show What Is Going On, Which Looks like Quite A Bit
in this Scene, but Also What Isn\'t Going O So One Thing I Would Urge
You to Do Is Don\'t Just Take Pictures up Close of Particular Things on
the Site. Take Some Big Far‑away Pictures If You Can of the Site. What
That Will Establish Is That In 1997 When You Were out There And Took
this Picture, There\'s No ‑‑ There\'s No Activity Going On over a Lot of
That Ground. All We Have Is the ‑‑ Is the Shed. When off Picture That
Only Shows The Shed and You Don\'t Show the Rest of the Site, You Have
the Problem That the Mining Claimant Back There in That Swamp of
Evidence in Court Is Going to Start Blowing Swamp Gas by Saying That,
Oh, I Had a Big Mill over Here. I Had a Big Pile of Ore over There and
They Just Didn\'t Photograph It. So it Can Be a Photograph of What
Isn\'t Happening Can Be as Important in That Swamp of Evidence as a
Photograph of What Is Happening, Because It\'s Our Proof That They
Weren\'t Doing What They Now Are Saying They Were Doing Back When We
Were out There Doing Inspections. I Have Another Photograph I Want To Go
to That Shows Some Mining Equipment. I Understand There Is Suction
Dredging Equipment, and the People Who Were Doing the Site Inspection
Were Actually Able to Tell from the Rust and Grass Growing up Between
the Parts of The Equipment That it Hadn\'t Been Used for Some Time And,
Indeed, May Have Been Rusted Through in Some Places, and So It Was
Inoperable. Photographs of That Kind of Thing Can Be Really Helpful,
Especially If You Can Imagine If There Would Be a Lot More Weeds Around
this Thing or If We Had, Say, Piles of Ore That Had Been Bagged in
Plastic Bags and the Plastic Bags Had Rotted Away and There Were Just
Fringes of it Left Around the Base, That Kind Of Evidence of Inactivity
Can Be Very Helpful in Establishing Appear an Occupancy Is Not for
Purposes of Mining, but Just to Find a Rent‑free Place to Live.
Photographs Are Going to Be Really Important in Your Evaluations of the
Site over Time. Comments That Help You Remember What the Site Was like.
Don\'t Just ‑‑ Even Though You May Have a Check List, and That\'s Great,
Because it Makes Sure You Cover Everything, the Comments That You Make
That You Take the Time to Make in the Field Are Going to Be Very Helpful
to You next Year When You Go Back out There. You May Check, Are There
Buildings There, Yes. Next Year You Go Out, Was That Third Building
There Last Year Or Is That New? You Need to Have a Little Bit More Notes
about It. And, of Course, Photographs Will Help You Immeasurably There.
The More Photographs You Take, The less You Will Have to Write On Your
Forms.

Shumaker: Looks like We\'re about 10 Minutes from Our next Break. So
Let\'s Move on Here.

Anderson: I\'m Going to Move to The next Elmo. The next Thing We\'re
Going to Want in the Referral Package Are The Plans, the Notices and
Then The 3715 or Other Occupancy Applications and Any Correspondence You
Received from The Occupant. Also, Your Correspondence to the Occupant,
and in Particular, If You Have Ever Had a Letter That You Didn\'t Count
All the Way to 10 Before You Put it in the Mail, Give Us That Now,
Because, Again, That Would Be Kind of a Surprise to Get in Court. We
Would Rather See it for the First Time in Your Referral Package Where We
Can Deal with It than Have the Defendant Flash It on Us in Court and Be
Standing There with Our Tongues In Our Mouths and Not Know What To Say
about It.

Shumaker: Remember That Your Case File Needs to Be Complete. You Need to
Have Everything in It, Warts and All, Whether it Makes You Look like an
Idiot or Superman.

Anderson: If You Give Us Something Without Warts, We\'re Likely to Say
Where Are the Warts? Because Usually There Are Warts And We Would Rather
Have You Tell Us about Them than Not. I Can Tell You this\... Some
People, I Fear, May Disguise or Hide Their Warts Because They\'re Afraid
We Won\'t Take Their Case If They Don\'t Tell Us about It, And I Can\'t
Say That Isn\'t Sort Of a Half‑wise Strategy Because Maybe We Will Take
Your Case Better If You Haven\'t Done Something That Makes a Problem Out
of It, but I Can Tell You That Your Second and Your Third And Your
Fourth and Referral Better Have All Their Warts or They\'re Not Going to
Get Taken Even If They Don\'t Have Any Warts Because We Don\'t like
Surprises, and We Do Remember People Who Have Surprised Us. So Just Be
Frank. You Should Always Be Frank Anyway, and this Is a Good Time To Be
Frank, Is in These Referral Packages. Now, this Is the Fun Part of the
Referral Package. This Is Where You Get to Tell Us Your Wish List, What
You Want For Christmas, What You Would Like Us to Ask the Court to Get
You. Tell Us about the Rental Value. Tell Us Why You Think the Property
Is Analogous to What Kind of Camping Facility That BLM Offers the
General Public And What Your Going Rate Is for Those Charges. Tell Us
about Your Clean‑up Costs and Your Administrative Costs, the Things You
Have Been Filing Away in That Financial Package. Lotus Have All That
Stuff. That\'s What We\'ll Ask the Court To Award to the Government in
The Litigation. Also on Your Christmas List, a List of ‑‑ to Describe
What You Want by Way of an Injunction. When Do You Want the Occupant to
Be Gone? We Will Counsel You to Give the Occupant a Reasonable Time to
Get His Stuff Gone. The More Cleanup He Does Himself The less We Have to
Do. So We Won\'t Him Gone Immediately. We May Want Him to Stop Pouring
Mercury on the Ground Immediately, but We Won\'t Necessarily Want Him
off the Site until He Has Had a Reasonable Chance to Get His Things off.
What Cleanup or Removal You Want The Occupant to Do. This May Include
You Want the Occupant to Disclose to You Where He Has Put His Booby
Traps Or Where He Has Been Burying His Household Waste or Those You
Sorts of Things So You Don\'t Have to Waste a Lot of Your Personnel Time
Collecting That Information. Also You May Want to Impose Some Conditions
on the Occupant\'s Return. This Is That Great One Of, Let\'s Make Sure
We Don\'t Have to Evaluate Their 3715 Application Until They\'ve Paid
Those Damages That We Asked for. Now, What Do You Bring to the U.s.
Attorney in an Emergency Where You Have Mercury Pouring On the Ground, a
Fire Hazard? What You Bring in Is That Foregoing Package, Everything
That\'s There. Of Course, it Can Be a Little Sloppier, a Little Looser.
We\'d like You to Follow up Later When the Emergency Has Passed With
More Detail but Just the Bare Essentials, plus a Real Emergency. It\'s
Got to Be a Real Emergency, Not Five‑year‑old Sewage That\'s Been
Dripping out That Nobody Has Died from Yet or That Not an Addit That Has
Been Underbuttressed for the Last 12 Years and We Have Known about it
And Now We Have Decided It\'s an Emergency. The Last Thing I Want to Go
over With You and I Will Do it Quickly Because I Know Time Is Short,
There\'s a Lot of Evidence That Goes into Court Before You Get to a
Trial, Something You Never Really See on the Television Shows about Law.
That Evidence Usually Comes in The Form of a Deck Law Declaration and
Declarations Have Magic Words and Most of My Customers in the Eastern
District of California Spend Hours on the Phone with Me Getting These
Declarations Ready. In the Handout I Give You a Sample Declaration.

Shumaker: That\'s on Page A‑13 in Your Handout.

Anderson: Yes, A‑13. Right. A‑13 And, I Think, 14. The Information
That\'s Italicized Is like Magic Words You Have to Use for the
Declaration to Be Legally Effective. Then the Information Not Italicized
Is General Instructions to You about the Kinds of Information We Need
You To Cover. It\'s Self‑explanatory, but There Is One Thing I Want to
Emphasize, and That Is, the \"How Do You Know.\" You Are Going to Be, as
You Saw From the First Elmo, You\'re Going to Be Saying That I Make The
Following Statements Based Upon My Own Personal Knowledge, Except Where
So Stated Below, And That Means What it Says. What That Means Is That
When You Say a Fact That Such and Such Equipment Was out There or Was
Not out There, Whatever, That Means That Your Eye Saw It. I\'m Waiting
for the Camera to Catch up with Me, That Your Eye Saw It, Your Nose
Smelled It, Your Ears Heard It, You Are the One Who Is the Witness of
That. Now, If You Are Not the One Who Heard it or Saw It, You Can Still
Get it In, but You Need to Say Who Is the Person That Did See and it Why
They\'re Not Available. At Least at the Tro and the Preliminary
Injunction Stage That Kind of Hearsay Evidence Is Perfectly Admissible
and We Can Get it In. Eventually at the Trial We Will Need the Firsthand
Account or If We ‑‑ If the Person Who Did Hear It, See It, Smell it Made
a Note Of That in That Occupancy Trespass History You Have Been
Accumulating, Then We Can Get it In as a Government Record. Don\'t
Speculate. Don\'t Vent. Don\'t Sound Emotional. This Should Not Be a
Personal Vendetta. If this Is a Personal Vendetta, I Really Recommend
You Counsel With Your Supervisor and Some of Your Colleagues, Because
It\'s Going to Be Tough to Work this Case If You Have a Personal
Involvement in It. You Need to Be Dispassionate as A Federal Employee
Dealing with The Public and Not Get Ego Involvement.

Shumaker: in Some Cases Where There Is a Personal Problem like That, We
Here at the Training Center Have Been Called upon to Go and Look at the
Case as Just A Neutral Party That Has No Ax To Grind Anywhere, and Those
Have Been Pretty Successful. Doesn\'t Have to Be Us from the Training
Center, but Bring Somebody from Another Office.

Anderson: It\'s Perfectly Natural To Sometimes Get Overly Involved In a
Case. I Am Not Saying You Should Be a Cold Fish, but I Am Saying When
You Find Yourself Drifting down That Path, Try to Put Your ‑‑ Pull
Yourself Back. Let Me Point out One More Thing. Whatever You Say in
These Declarations Needs to Be True And it Needs to Be Supported Because
If We Ever Do Go to Trial, You Will Be Cross Examined Very Likely about
What You Have Said in Your Declarations Earlier in the Case. It Needs to
Hold Up. The Rest of the Material That\'s In These Declarations, I Have
Gone it Through Real Quick Here, It\'s in the Handout at Page A‑13 And
14. It\'s Self‑explanatory. Lastly, I Think E‑mail to You This Morning
Is a One‑page Summary Handout That Lists All These Elements of a Good
Referral Package, and I Would Suggest That If Nothing Else You Hang onto
That Because That Gives You an Index for What You Will Need to Give to
the U.s. Attorneys. And I Appreciate the Chance to Explain this and ‑‑

Shumaker: Quick Word about the Two‑page by E‑mail in Your Package of
Information We Did Ask You to Fax in Your by E‑mail Address So We Could
Send Updates To You and this Is One of the Updates We Have Either Sent
or Will Get to You Once We Know Where to Send Them. Also We Have a Come
Minutes Left And These Pictures Here, I Think, So What May Constitute an
Emergency, and it May Be Worth Describing What\'s in Them.

Anderson: Did I Ignore My Pictures? Let\'s Show the One Picture That Is
Waiting on the Standby Here. This Is the Picture of Sewage Draining into
a Pit. You Can Imagine That If That Sewage Were Then Draining down Into
a Little Creek That Became The Municipal Water Supply for One of the
Sierra Foot Hill Communities That That Would Be a Kind ‑‑ the Kind of
Sanitation Or His Hazard We Would Immediately Want to Abate. I Actually
Think Your Regulations May Give the Director Some Power to Abate Those
Things Just by an Order. But Would You Certainly Want to Let the U.s.
Attorneys and Your Solicitors Know You Are Issuing Such an Order Because
That Kind Of Peremptory Emergency Action Can Often End up in Court
Later. I Am Not Saying That\'s a Bona Fide Emergency, Though. If You
Have Got E‑coli Drifting Downstream into Drinking Want, That\'s
Something We Don\'t Want Happening on the Public Land. It\'s Not Being a
Good Neighbor To the People Downstream to Let That Happen. The next One
Shows My Buddy Scott from Folsom, and Scott Is Looking at a Bad
Electrical Connection. The next Slide Shows a Close‑up Of That
Connection. I Guess Those Are Exposed Wires. Again, I Am Not the
Electrician In the Group Here. I Am Not Going to Swear to What That Is
Supposed to Be Showing, But I Understand That Shows a Very Dangerous
Electrical Condition. If Somebody or Some Critter Came Along and Touched
That, They Would Be Dead, or I Guess it Could Start a Fire. So That
Would Be Something Else We Would Want to Abate. Now, the Best Way of
Abating That Would Be to Go up to That Shack Back There, Knock on the
Door, and Say, Hey, Buddy, Can You Clean this Up? If That Doesn\'t Work,
Then We Have Some More Steps We May Need To Take to Make Sure That We
Protect the Public Land, Which Is Our Constitutional Duty.

Shumaker: I Have a Quick Question in and I Am Not Sure Where it Came
From, but it Came From Area Code 760, and Here We Have ‑‑

Anderson: That\'s the Eastern Kern County. That\'s New the Area Code for
Ridgecrest.

Shumaker: a 3715 Occupant Overstakes Another Person\'s Claim and Is
Found to Be Living On the Wrong Claim. Can the Rival Claimant Bring
Trespass Charges in Local Court?

Anderson: Yes, They Can. It\'s My Understanding That Rival Claimants
Have Property Rights, In this Case Conferred by the Federal Government
under Mining Laws but Those Property Rights Will Be Recognized in State
Court and That Trespass Occupant Can Certainly Bring Trespass Action to
Get Somebody off His Claim. That Is, in Deed, the Purpose of The Mining
Laws, Was to Give People Sort of a Temporary Property Right That They
Could Vindicate Legally So They Wouldn\'t Have to Shoot Each Other Back
in 1872.

Shumaker: and the Question from A District in Idaho, and the Fax Didn\'t
Come out Well, but There It Is, Why Bring Civil Actions And Monetary
Damages Against Someone Who Has Nothing? And What Is the Best Action to
Bring Against These Indigent People?

Anderson: a Lot of Mining Claim Occupants Are Somewhat on the Indigent
Side, as We Say, and The Advantage of Bringing the Damages Claims Is
This: You Can Ask the Court to Let You Not Have to Deal with Their 3715
Applications, Review Their Plans Of Operation, Accept Their Notices of
Commencement of Operations until They Have Paid The Damages, and If They
Can\'t Ever Pay the Damages, Then You Don\'t Have to Deal with Their
Continuing to Do Detriment to The Public Lands, Which They Will Never Be
Able to Compensate The Public for. So I Have Asserted Damages ‑‑ That Is
a Good Question. It\'s an Excellent Question. Normally the Doj Doesn\'t
Seek Damages Against People Who Are Judgment‑proof, as We Say. They
Can\'t Pay It, So Why Should We Try to Collect It. But in this Case, You
Want Other Things Done Here. You Want the Occupant off the Land. And You
Would Also like to Bring An End to an Administrative Headache and a ‑‑
Headache and Management Program That\'s Taking Your Resource Time
Without Furthering the Mineral Development Interests That Were The
Reason for Having the Mining Laws. So If You Ask for Money and They
Can\'t Pay It, but You Have an Order That You Don\'t Have to Have Any
More Dealings with Them Until They Have Paid It, Then They\'re Going to
Have Go out and Get a Job First Before They Come Back on the Public Land
and Do More Mining.

Shumaker: We Have ‑‑ We\'re Running a Little over. We Have a Question
and I Am Going to Try to Summarize it to Make it as Quick as We Can.
Basically You\'re Describing a Really Good Case File That Takes A
Significant Amount of Time to Prepare. BLM Is Getting Smaller, Fewer And
Fewer People Doing More Work, but That\'s Across the Government. If We
Send a Case to You That\'s Well Prepared and It\'s Rejected, It\'s
Unlikely We\'re Going to Be Doing it Again. So What Sort of Chances
Would You Say a Really Well Prepared Case Is Going to Be Taken?

Anderson: I Would Really Recommend You Start Early and Often Contacting
Your Solicitor\'s Office and the U.s. Attorney as You Develop this
Package, Because If There\'s Something Fatal Flaw in Your Case Legally,
for Instance, I\'m Not Sure What That Can Be, but There Could Be Some
Fatal Flaw Legally, Perhaps There Is a Plan Of Operations out There That
Gave the Occupant a Life Estate On the Public Land or Something Like
That, If That\'s the Case, We Can Nip it in the Bud. So If You Bring the
Problems in Your Case Especially to Light Early, We Can Stop You from
Putting the Effort into the Rest Of the Package. Also, We Can Steer You
in the Effort, Steer You in the Direction of What We Will Need. For
Instance, If You Are Sending Me a Referral, You Don\'t Need to Include
the Mining Laws and the CFRs, Because I Have Handled Other Cases and I
Have My Own Files. But If You Are Dealing with an Office That Hasn\'t
Taken a Case For You in Quite a While and Practically Any Office Where
the Assistant Isn\'t up to the Speed On the New Regular, 3715, You May
Want to Cover That. Work with Us. I Don\'t Wait until You Send Me The
Referral Package to Work With You on the Case. Call Me up in Advance and
Let Me Help You Steer You in the Direction of What We Need. Your
Solicitors Can Do the Same.

Shumaker: Basically Try to Iron Out the Bugs Before Spending a Lot of
Time on It.

Anderson: and the U.s. Attorney\'s Office Is ‑‑ We\'re Reinventing
Government Where We Have Fewer People Doing the Same Work. If That\'s
Going to Be Successful, it Means People Are Going to Be ‑‑ Have to Be
Really Frank with Each Butt What Their Cases and Be Efficient Putting
These Things Together. It Also Suggests That You Will Find, I Think,
That it Takes You Three or Four Times Longer to Do Your First Referral
Package than It Takes You to Do the Second, Because, for One Thing, You
Can Cannibalize Big Chunks.

Shumaker: It\'s Time for Us to Go To a Break. When We Return, We\'ll
Look at Criminal Prosecutions and BLM\'s Role in the Process. We\'ll
Also Look at the Evidentiary Requirements. So Don\'t Go Too Far, Because
We\'ll Be Right Back!

Shumaker: Hello, Again, and Welcome Back to the First Day of Our Mining
Claim Course. With Us Now for Our Last Segment Before Lunch Is Dennis
Mclane, BLM\'s Deputy Chief of Law Enforcement. Welcome to the Show.

Mclane: It\'s Good to Be Back.

Shumaker: We Saved the Weather For You. Normally the Monsoons End by
Now, but We Made a Special Exception in Your Case. Also with Us Is Mike
Meyer of BLM Ranger from the Palm Springs Resource Area in California.
So to Speak, Mike Will Be Backing up Dennis Mclane. Mike, We\'re Glad
You Could Be Here Today.

Meyer: I\'m Happy to Be Here.

Shumaker: You\'re from My Old Territory and Ought Lot of Things You
Brought for Us to Look at Look Familiar.

Meyer: a Lot of Things Don\'t Change, but I Think 3715 Gives Us New
Options.

Shumaker: Dennis, I Understand You Have Information on How to Approach
Criminal Cases.

Mclane: I Want to Start out by Sharing with You about Criminal Law
Enforcement and the BLM. We Have over a 20‑year History Of Using
Criminal Law Enforcement Authority. I Need to Point out There Is
Currently No Other BLM Program That Is Subject to as Great a Scrutiny
and Sensitivity as Use Of Criminal Law Enforcement. We\'re Not Going to
Tell You That Sensitivity Is Going to Keep From You Doing Your Job. We
Want You to Do Your Job and Use Criminal Remedies When They Are Called
for. But We Want to Go Through a Few Principles and Perhaps Rules of The
Road Here. Because When We Use Criminal Law Enforcement Authority, We
Need To Follow the Rules That Are Associated with That to See to It That
the Job Is Done Correctly. You\'re All Familiar with Some of The
Challenges We Have Lived Through in the past Few Years With United
States Versus Nye County, Local Citizens Challenging Whether the Federal
Government Owns the Land, Whether or Not We Have the Authority to Do Law
Enforcement. So We Will Go over Some of the Principles and Everybody
Understands That We Do Stand on Firm Ground When it Comes to Use Of
Criminal Authority. The Very First Place We Go to For the Rules of the
Road Is Just the Same Place That Some of Our Citizen Detractors Go To,
And That\'s the United States Constitution. I\'m Not Going to Go Through
this In its Entirety but I Am Going To Hit on Some of the Sections Most
Pertinent to Our Enforcement Authority in Occupancy and Use. First of
All, I Want to Point Out That the United States Does Have the Authority
to Own and Manage the Land and to Publish The Needful Regulations to
Regulate the Use of Those Particular Lands. This Comes from Article 4 of
the United States Constitution, and Basically We\'re Finding Here That
Our Authority Rests with The Property of the United States. That\'s Sort
of the Bounds of Our Authority. And the Congress Has the Authority to
Make All Needful Rules and Regulations That Pertain to That Property of
the United States. The Federal Land Policy Management Act, the Mining
Law, The Regulations in 3715 Are All Part of That Regulatory Structure
That We Use to Manage The Public Lands and We\'re Able To Do That under
Our Constitutional Authorities. Another Important Rule of the Road That
We Get Reminded of by Some of Our Tree Tractors Is Article 10. Basically
Article 10 Says That If the Powers Are Not Specifically Given to the
United States in the Constitution, Then It Is the States That Are in
Charge of That Particular Authority. That Basically Means That It\'s The
State That Has the Basic Police Authority Rather than the BLM. Our Law
Enforcement Authority Rests with the Protection of the Property and the
Authority We Would Have as a Property Owner. Because of That, All the
Law Enforcement That We Do on the Public Lands must Be Done in Concert
with and Complementary To State and Local Authorities. When State and
Local Authorities Exert Their Authority or Building and Safety Codes or
Other Things That Are Realms of Their Responsibility, We Need to Pay
Attention to That and Make Sure Our Actions Are Complementary to Theirs.
I\'m Going to Cover a Little Bit About Searches and I Want to Be Very
Clear Here That a Search Is A Law Enforcement Term and Applies to
Criminal Law Enforcement, Opposed to Impoundment. Very Two Different
Things and We Will Find out Some of the Differences Here. I Want to
Clearly State it Is The Bureau of Land Management\'s Policy to Obtain
Search Warrants Prior to Initiation of Any Search Whenever Possible. So
That Is the Policy That of BLM, Whenever Possible We Will Obtain Search
Warrants. But I Am Going to Go into Some Examples of When We Can Indeed
Do Searches Without Warrants So We Clearly Understand Where We Stand
There. Now, First of All, We must Have Statutory Authority to Searches
Without a Warrant. Statutory Authority. That Comes from the Federal Land
Policy and Management Act, and It Gives Us the Authority to Search
Without Warrant. Now, I Know That this Causes Some Consternation with
Some of Our Opponents Because They Believe, of Course, That the
Constitution Guarantees Them That They\'ll Always Have a Search Warrant,
but That\'s Not Always the Case. First of All, Before We Do Any Search
Without a Warrant, We Must Have Probable Cause, and I\'ll Talk about
Probable Cause a Little Bit Later on Here. Here\'s the Classic Examples
of When a Search Without a Warrant ‑‑ First of All, We Have Probable
Cause, and We Have Some Rule of Law Which Basically Is Case Laws That
Emerge out of a Variety of Different Court Venues That Basically Give Us
Instructions on When We Can Do This Without a Warrant. The Very First
One Is When We Have Consent. If an Owner Gives Us the Consent To Enter
Their Building and to Take a Look Around, Then a Search Without a
Warrant Can Be Conducted. The next One Is Incident to Arrest. Ok.
Incident to Arrest Occurs When We Are Making an Arrest for a Particular
Crime. We Can Search the Immediate Area For Evidence of That Particular
Crime. The Third One Is Exigent Circumstances and this Is Perhaps the
Example That Gets Used Most in Law Enforcement Throughout the United
States. That\'s When There Are Such Circumstances Such as We\'re Dealing
with a Subject in a Vehicle That If We Took the Time To Go to Town and
Swear out Our Probable Cause in Front of the Magistrate and Return with
a Search Warrant, When We Get Back, I Think Everybody Can Realize That
the Car Is Going to Be Gone. Ok? Exigent Circumstances Means the
Evidence May Disappear. In the Area of Occupancy Trespass, We Need to
Understand Our Main Piece of Evidence Is The Building They Are Living in
Itself, and Basically If it Disappears We Really Don\'t Have A Problem
with That. That\'s What We Are Trying to Get To. Exigent Circumstances,
If it Involves Occupancy, We Need to Examine Why Do We Need to Go Into
the Structure to Look for Evidence of Occupancy Trespass. In My Mind,
That May Be Few and Far Between. But I Will Talk with Other Crimes That
Can Occur Connected With Occupancy. The Last One Is Inventory of
Abandoned Property. We Can Conduct a Search to Inventory Abandoned
Property. The Purpose of the Inventory Is Protection of the Person\'s
Property Rights. We Want to Identify Each and Every Piece of Property
That\'s Picked Up. We Want to Identify the Custody Of That Piece of
Property for Its Eventual Storage. I Am Going to Give You a Reference
Here in Handbook 9232‑1, Chapter 6, You Will Find A Complete Set of
Procedures That Shows You How to Establish Abandonment, How to Inventory
Property and How to Identify the Property Correctly. Those Are
Procedures We Need to Follow to Make Sure We Don\'t Get In Trouble Later
with a Property Protection Type Situation. Now, We Think We\'ve Made
this Sort of Easy for You about Searches, and I Spend a Little Time on
This, Because in the Last Session We Had about a Year Ago, There Was a
Great Number of Questions Related to Searches. We Think We\'ve Made this
Easy by Merely Publishing in the Regulation Some Guidance for to You
Follow and the Basic Guidance Is If the Structure Is Used Solely for
Residential Purposes, We Don\'t Want You Inspecting the Inside of That
Structure Unless You Have Permission of the Occupant or Permission of
the Court. Ok? We Think That If You Follow this Regulation to the T, We
Think That\'s Basically Going to Keep You out of Trouble. So the Little
Two Pieces of Guidance on Searches, Is If You Follow the Regulation and
Do What it Requires And/or You Follow the BLM Policy That Basically Is
Obtain a Search Warrant Whenever Possible, We Think That Will Keep You
out of Trouble When it Comes to Searches or Inspections of Residential
Structures. Ok, There\'s a Couple Little Book Ends We Want to Give You
Again About Searches and Inspections, And ‑‑ Because Everybody Last Year
Asked for the Case Laws and The Other Things That Give You This, and I
Call These Specifically Book Ends Because They\'re Not Definitive Enough
to Give Us Pure Guidance. What I Am Trying to Do Is Give You One End of
the Scale and the Other End of the Scale N this Particular Case, the
Ruckman Case, as a Point of Summary, This Was a Person That Was Living
in a Cave, and in That Cave They Had Some Explosives, Some Ammunition,
Some Hand Grenades and in Order to Live in The Cave, They Had Merely
Placed Boards over the Opening of the Cave in Order to Sort of Keep The
Weather out or Whatever the Purpose May Be. In That Particular Case, Law
Enforcement Officers Found the Cave, They Entered the Cave, They Found
the Evidence of the Explosives and Other Crimes, and The Person Was,
Indeed, Prosecuted for Those Crimes. In the Appeal, the Defendant Tried
to Make the Case That They Had Reasonable Expectation of Privacy Inside
the Cave and a Search Warrant Would Have Been Required. However, the
Courts Found That In this Particular Case That Squatters Have No
Reasonable Expectation of Privacy. Now, I Want to Clarify That a
Squatter Is One Who Enters on The Land Without Any Lawful Right, and I
Want to Point this Out Because in Some Cases a Mining Claimant May Have
a Great Deal More than Mr. Ruckman Had. First of All, They Have the
Mining Law, and the Mining Law Gives Them Some Degree of Authority to Be
There, to Use The Land for Mining, Perhaps Even to Occupy If Reasonably
Incident To, and Also Mr. Ruckman Didn\'t Assert His Right to Privacy
Because He Placed the Temporary Boards over The Cave. I Think the
Example of a Mining Claim with a Building on it with A Locked Door with
a Lock on it Certainly, Certainly Is a Different Case That Mr. Ruckman.

Meyer: the One Thing We Have to Remember, Too, Though Is Our Officer\'s
Safety in These Times And Instead of a Search, We\'re Doing like a
Frisk, We Have to Be Sure That\'s What\'s Inside That Building Is Safe,
That We\'re Not in Danger. So We Have to Find That Fine Line Between
Going in There but Also Assuring Our Safety. It\'s Very Important to
Remember Here.

Mclane: That\'s Right, Mike. And in a Few More Minutes We Will Talk
about Levels of Proof Like Reasonable Suspicion and What We Need to Know
That Makes Us Suspicion of Things of Danger Inside the Residence, and
Certainly That Would Be Authority for Us to Take Care of That Particular
Thing. The Other End of the Bookcase With this Book End Is U.s. Versus
Gooch, and in this Particular Case, the Courts Found That There Was a
Reasonable Expectation of Privacy in a Public Campground. Ok? The Key
Word Being Lawfully. So in this Particular Case, the Courts Found That
Because Mr. Gooch Had a Lawful Reason to Be There, and That the Agency
That Ran the Campground Did, Indeed, Charge a Fee, That That Fee
Constituted a Rent, His Occupancy of the Campground Was Lawful, and
Therefore He Did Have a Reasonable Expectation of Privacy in the Tent
That He Was Occupying Because it Was a Lawful Occupation. So That End of
the Book End Would Indicate That in Mining Claim Occupancy, If the BLM
Did Indeed Concur with an Occupancy Of a Mining Claim for Reasonably
Incident Purposes, That That Residential Occupant Does, Indeed, Have a
Reasonable Expectation of Privacy, and We Need to Make Certain We Guard
That Right.

Shumaker: If a Mining Claim Occupancy, and this Is a Question from
Idaho, and You Just Answered the First Question, Which Is How Much Right
to Privacy Does a Person Have That Occupies a Mining Claim. Since it
Isn\'t a Primary Residence, and I Have to Insert, We Don\'t Know That
Really for Sure, but since it Isn\'t a Primary Residence, Is it
Allowable to Search the Curtilage of the Residence? Presumably this
Would Be on a Mining Claim.

Mclane: First of All, I Would Say That the Residential Structure Itself,
There Is a Reasonable Expectation of Privacy, Whether They Are in That
Residence Part Time or Full Time Is Not a Question Here. When it Comes
to Curtilage, and This Word Was Brought up in the Last Session,
Curtilage Pertains To the Area Immediately Around The Residential
Structure, the Area That Is Used by the Occupant. They Might Have to
Walk out to Outbuildings or to a Corral or To a Garden, Whatever the
Case May Be. There Is No Definitive Case Law That Says That There Is No
Curtilage on Public Lands. However, There\'s a Number of Case Laws That
Discuss the Concept of Open Fields, and These Are Open Fields on Private
Land That Law Enforcement Officers Do, Indeed, Have the Authority to
Enter upon Public ‑‑ Open Fields Even When It\'s Private Property. So
That Follows That We Certainly Have the Authority to Inspect the Site
and Be Present On the Public Lands That Immediately Surround the
Building.

Shumaker: but Not Necessarily Go Into the Building.

Mclane: and Not into the Building.

Shumaker: and We Stay out Without a Warrant or Being Invited In.

Mclane: Correct.

Shumaker: Do These Also Apply to Beyond the BLM Law Enforcement Is
Officers, Geologists and Other People Examining the Claims.

Meyer: Most Certainly.

Shumaker: They Apply to All of Us and We All Need to Follow This.

Mclane: I Would like to Move on And Describe a Little about the BLM Law
Enforcement Program and What Our Objective Is So We Can Understand When
Does the Criminal Remedy Become a Technique We Need to Use for Solving a
Particular Problem. Going Back into History a Little Bit, this Comes
from the Legislative History of the Federal Land Management ‑‑ Federal
Land Policy and Management Act and You Can See In the First Sentence
They\'re Basically Saying That Criminal Should Be Remedies of Last
Resort. Emphasis Should Be Given to the Creation of a Law Enforcement
Presence Which Will Advise the Public, and Then it Goes on to Say Rather
than Using the Courts For Solving Our Problem. So That Simply States
That the Bureau of Land Management Should Use Some of its Traditional
Methods, Administrative Methods First, to See If We Can Resolve The
Problem, Without, Quote‑unquote, Making a Federal Case out of It. Now,
Further, What Is Our Purpose for Even Doing These Mining Claim Occupancy
Regulations? And Here It\'s Clearly Stated in The Legislative History
That the Committee Expects the Secretary To Use That Law Enforcement
Authority in a Way Which Helps The Public Abide by His Rules, And the
Objective Being, and This Is Sort of Our Purpose, the Protection of
Resources and the Public Safety. So Public Safety and Resources Is the
Reason Why We Are There, And as Long as We Keep That Reason in Mind, We
Shouldn\'t Have Any Particular Problems.

Shumaker: a Quick Question, Mike. When You\'re Looking at These Things
and Making Contacts with People on Public Lands, Does Every Contact
Result in a Cry Citation?

Meyer: No, Most Certainly. We Are Looking for the Lowest Level of
Enforcement We Can Go On. So We\'re Looking for Compliance, If We Can
Verbally Get That, That\'s What We\'re Looking for. We\'re Not Looking
to Cite Everybody Who Is out There. We\'re More Concerned about What\'s
Going on and Solving That Problem than Bringing this into Court. We\'re
Looking for a Solution, Not a Criminal Action.

Shumaker: and I Think We Should All Be Looking for a Solution Rather
than Finger Pointing. I Have Do Have a Quick Announcement on Our Time.
As You May Have Figured, We Seem To Be Running a Little over. We Have
Eight Minutes Now Approximately until 11:00 Pacific Time, However, We
Can Go Another 15 Minutes with the Satellite Uplink and Satellite. So
We\'ll Probably Roll a Little Over Time. Don\'t Go Away. That Will
Shorten Lunch to about 45 Minutes. So Stay with Us. I Think It\'s
Worthwhile.

Mclane: Ok. We Have Translated in the Bureau Of Land Management Those
Rough Intents That We Got from Congress in a Very Simple Statement That
Describes the Role Our Law Enforcement Officers Play. Our Law
Enforcement Officers Can Bring in Certain Actions That Other Employees
Do Not Have the Authority For, Such as Warnings, Citations, Criminal
Complaints, And Arrests, and the Purpose of This Is to Ensure Compliance
When That Voluntary Compliance Fails, or When That Fails to Happen. So
Quite Often Law Enforcement Is Referred to as One of the Tools in Our
Tool Kit for Dealing with Problems on the Public Lands, and Certainly
That\'s Where it Comes In, Is to Use That Tool When That Voluntary
Compliance Fails. Now, I\'m Going to Talk a Little Bit about Some of the
Things That Are Considered Criminal, And Earlier in the Program I Heard
a Question Come up about Do Law Enforcement Officers Tend To Move Right
Towards Criminal Remedies, or Are They Predisposed and I Would Say the
Basic Answer to That Question Is Yes. The Reason for That Is That
That\'s Basically Our Job, Is Criminal Law Enforcement. I Think the
Answer Is Yes Because That\'s the Arena That We\'re Familiar with
Operating In, Rather than the Civil and Administrative. But Civil and
Administrative Is Just as Big a Part of Our Jobs In Law Enforcement. So
We Sort of Tend to Go There, And We Also Tend to Go There Because under
the Constitution In a Criminal Action, Every Person Has a Right to a
Speedy Trial. So Because of That, the Criminal Avenue Sometimes Is a
Little Bit Faster than the Civil Avenue and Sometimes We\'re Looking for
a Quick Fix on a Problem. But I\'m Going to Point out Later On When We
Get into the Difference Between Civil and Administrative, Some of the
Advantages and Disadvantages of Each and Whether or Not You Really Want
to Speed up the Process and Ultimately Not Get What You Were Looking
for. Now, What Makes Something Criminal? First of All, in the Federal
Land Policy Management Act, Any Knowing and Willful Violation of Our
Regulations Can Be a Criminal Act. Ok? Keeping That Intent in Mind,
Though, That the Congress Didn\'t Want to See Us Resolving All of This
in Court. They Expected Us to Use Sort of Our Judgment as to When We
Would Apply the Particular Criminal Penalties. And Also Understanding
That the Federal Land Policy and Management Act Makes Violation Of Our
Regulations a Misdemeanor Rather than a Felony. So to Some Extent, It\'s
Not That Big of a Deal to the Justice System in Terms of Criminal. I
Also Want to Point out That Another Act That Could Be Criminal, of
Course, Is a Failure to Comply with Any Notice or Order We May Issue. We
Issue a Lot of Notices, Notices of Noncompliance, Notices of Trespass,
Other Abatement Orders, and Anybody That Looks at That Order Understands
That We\'re Telling Them That They\'re in Violation Of the Regulation,
and Then They Choose to Ignore It, Certainly Is a Knowing and Willful
Violator and Criminal Law Enforcement Authority Can Be a Technique
There. The Third One Is Any Repeat Offenses. If We Put a Person on
Warning or Issued a Citation for Draining Raw Sewage on the Ground and
We Tell Them to Correct That, and If We Come Back Later and They Set up
a New Trailer and That One Is Draining Sewage on the Ground, Certainly
That\'s Knowing And Willful and It\'s a Repeat Offense That Can Be Dealt
in a Criminal Manner. Earlier in the Broadcast Somebody Pointed out That
BLM Law Enforcement Needs to Be Notified of Some of the Problems You
Have in Occupancy and I Need To Support That Statement, Because You Do
Need to Report to Law Enforcement You\'re Working a Trespass Case and
What Other Possible Violations of Law That May Be There. Occupancy
Trespass May Not Be The Only Thing Going O There Are Other Federal Laws
That We Enforce That Don\'t Necessarily Require a Knowing and Willful
Element. Some of Those Are the Archaeological Resource Protection Act,
the Endangered Species Act, Theft of Government Property, Timber Removed
or Transported, Timber Set Afire, And the Classic Example of this Is the
Controlled Substance Act. If Somebody\'s Got a Mining Claim And They\'re
Growing Marijuana, Or They\'re Conducting a Drug Laboratory, or
Participating in Other Illegal Activity of That Sort, Those Are the Kind
of Things That Can Take That Last Resort That We Heard in the
Congressional Intent and Move it Straight into What We Would Call A
First Resort on a Criminal Action. Last but Not Least, Another Thing
That Makes Things Criminal And I Think We All Need to Understand That,
Is in Most Cases in an Occupancy Trespass, The Only Victim to the
Trespass, Of Course, Is the United States Government and Our Land Being
Put to a Use That Is Not Authorized. However, When That Trespass Starts
Turning into a Situation Where There Are Other Victims of That Crime,
Then Those Certainly Should Be Looked upon as Classic Criminal in
Nature. Earlier You Heard Reference to The Word \"Nuisance,\" When the
Thing Starts Constituting a Nuisance, Not Only to the BLM, But to
Members of the Public as Well, We Have Another Victim Involved. Another
Classic Example Is Where Something Causes a Hazard, Such As the
Electrical Situation. If That Was an Area of High Public Use Where Our
Public Could Be Exposed to That Hazard, We Would Want to Take Some More
Immediate Action. Another Classic One Is Interfering with Other Users
and Their Lawful Use of the Public Lands, Especially If We Have Somebody
That\'s Obstructing Their Entry upon the Public Lands and in the Worst
Case Scenario Using Deadly Weapons to Do That, like Pointing Guns at
People. That Certainly Elevates That Last Resort to a First Resort in
Terms of Being Criminal in Nature. Now, I Want to Go Through Some Of
The, What We Call, Burdens of Proof That We Deal with in Criminal Law
Enforcement, Because Sometimes the Non‑law Enforcement Officer May Be
Expecting the Law Enforcement Officer to Do Certain Things When, in
Fact, Those Burdens of Proof Aren\'t There. So It\'s Good for All of Us
to Understand These as Well as to Refresh Ourselves. The First One Is a
Concept Known As Reasonable Suspicion, and This Burden of Proof Emerges
From Case Law in the Law Enforcement Arena. It\'s Basically the
Suspicion That the Officer Has That Allows Them to Stop the Defendant
and Also Gives Them the Reason to Believe That There Are Circumstances
That Criminal Activity Is at Hand. Ok. Simply Put, this Burden of Proof
Gives Us Two Important Authorities: Number One, it Gives Us the
Authority to Stop The Citizen and to Investigate This Criminal Activity.
If the Criminal Activity Is Occupancy Trespass, it Gives Us The
Authority to Stop an and Identify Every Person That We Believe Is Living
There. And I Heard Earlier the Importance of Identifying Those Occupants
and the Length of Time They\'ve Been Living There Because Ultimately
When We Get To the Court Order of this Business, We Will Need to
Identify the Specific People That Need an Ejectment Order or The
Specific People That the Action Is Going to Be Carried Out Against. So
Reasonable Suspicion Gives Us The Authority to Stop and Identify These
People. The Second Part of That Authority out of Case Law Basically
Gives Our Law Enforcement Officers the Right To Make Things Safe. Ok?
What That Means Is That If Our Officers Has Reasonable Suspicion That
There Are Deadly Weapons Present and That the Person He Is Talking to
May, Indeed, Intend to Use Those Weapons Against the Officer or Against
Other Members of the BLM Inspection Crew, Then That Officer Does Have
the Authority To Frisk the Person for Those Weapons, Take the Weapons
Away During the Contact, and Make Things Safe.

Shumaker: Mike, Do You Encounter People with Firearms Frequently ‑‑

Meyer: Almost All the Time. It Seems like it Goes with the Territory.
People Have the Right to Have Firearms on Public Lands and Stuff. We
Want to See That They Are Displayed If We Are Going to Make the. We Will
Probable\' Go Ahead and Make That Weapon Safe, and after The Contact, We
Will Give it Back to the Individual.

Shumaker: Do You Ever Get People When You\'re Contacting Them Saying, I
Have a .357 in the Holster of My Belt and You Tell Me What to Do.

Meyer: and I Usually Tell Them To Keep it There Because I Don\'t Want
Them Giving it to Me. Usually People Want to Be Safe Also. So They Want
to Know How to Make The Situation Safe. They Will Make a Statement like
That to Us.

Shumaker: That\'s Only Good Sense.

Mclane: the Burden of Proof That\'s Most Important to Law Enforcement
Officers Is the Burden of Proof of Probable Cause. Some of You Have
Probably Heard This Statement Somewhere Before From Television or News
Reports, Whatever the Case May Be. This Is the Basic Burden of Proof
That We Need to Be Able to Prove up or to Be Able to Achieve Search
Warrants, Citations, Arrests and Other Lawful Law Enforcement Actions.
Now, this Is Basically Facts and Circumstances That Are Within The
Officer\'s Knowledge. Ok? Sometimes, Though, the Information That the
Non‑law Enforcement Officer Has That They Provide to the Officer Can,
Indeed, Lead to a Finding of Probable Cause and Moving Towards That.
Now, Basically It\'s the Officer\'s Knowledge and It\'s That Belief That
an Offense Has Been or Is Being Committed. Ok? We Have to Have this Burp
in Order to Even Issue a Citation. We Have to Have this Burp to Make an
Arrest. And When it Comes Time for this To Become a Legal Action in a
Court of Law, We\'re Going to Have Documents Such as Statements of
Probable Cause Where a Law Enforcement Officer Has to Actually
Articulate in The Document and Swear to the Information on Those Facts
and Circumstances That Lead Us to This Particular Belief. Once We Have
Probable Cause, We\'re Able to Charge a Person With a Criminal Offense.
The Charging Itself Doesn\'t Mean That We Have Everything We Need To Get
this Particular Case Prosecuted. In the End, When We Get to the Other
End of the Court Action, We\'re Going to Have to Provide To the Court
Proof Beyond a Reasonable Doubt in Order to Get This Person Convicted of
the Crime. Now, Proof Beyond a Reasonable Doubt Basically Means That
We\'ve Ruled out ‑‑ We\'ve Precluded Every Reasonable Hypothesis, and
All the Information We Have Produced Is Wholly Consistent With the
Defendant\'s Guilt. What That Merely Means Is That After We Charge the
Person with The Crime, with the Probable Cause, Then We Have to Prepare
Our Case, and in Preparing Our Case It\'s Really Not Too Much Different
than What Linda Talked About on the Civil Side. We Still Have to Wander
Through That Swamp of Evidence and Get That Evidence Presented in a
Logical Manner So That a Judge Or, in Some Cases, a Jury Can Understand
it Clear Enough to Where it Will Lead to Proof Beyond a Reasonable Doubt
in Order to Get this Person Convicted of the Crime. Ok, Getting Through
the Swamp of Evidence, I Am Going to Throw Out a Few Things Here for You
That I Consider Sort of Tips on My Experience with Particular Cases on
the Public Lands. So I Guess I Can Title this the Three Public Land
Defenses, and I Can Also Call it Dennis\' Guide To Getting Through the
Swamp of Evidence. The First One Is, and this Usually Occurs in this
Order Is, Is the Defendant May Indeed Tell You That \"I Didn\'t Know.\"
\"I Didn\'t Know What You Were Enforcing the Law with or Those
Regulations. I Didn\'t Know Anything about Them. I Didn\'t Know it Was
Required. I Didn\'t Know I Needed Concurrence of the Authorized Officer,
Whatever.\" How Do We Eventually Combat this In the Swamp of Evidence
When We Get to a Court of Law in First Of All, I Hope All of You Before
Anybody Even Violates the Law, That You\'re Doing the Best Job Can You
to Hand out These Regulations, to Hand out Brochures, to Post Signs, and
Make All of Your Potential, Potential Subjects out There Aware That
There Are Regulations And Requirements Pursuant to Those Regulations.
Ok?

Meyer: I Think It\'s Important, Too, That We Document That Also,
Especially If We See Something, If We Have Our Patrol Logs It\'s
Documented, When the Geologist Goes Out, There Is Document I Gave the
Person this Documentation, this Map. We\'re Trying to Help, but It\'s
Also Important to Start Building A Case If What Happens We Have To Do,
Right from the Very Beginning.

Shumaker: When I Was Assembly Occupancy Trespass Cases, I Depended on
Patrol Logs and Field Cards to Prove We Let Them Know Things. We Have
about Eight Minutes Left, Dennis. So We Probably Ought to Wrap This Up.

Mclane: but the Obligation to Document Isn\'t with Law Enforcement
Alone. The Non‑law Enforcement Person Needs to Document Things like
Telephone Conversations, Contacts with the Person at the Public Counter,
Things like That. The Second One That Usually Comes up Is \"I Thought I
Could.\" \"I Thought the Mining Law Allowed Me to Live Here. I Thought
the Surface Management Act Allowed Me to Live Here Because I Have These
Valuable Things. It\'s That \"I Thought I Could\" Defense. In Some Cases
They May Even Say, \"Well I Talked to Geologist So And So at the Area
Office and He Said If I Built the Road to the Top of the Hill, it
Didn\'t Sound Like a Problem.\" Well, the Second Part of the
Conversation He Didn\'t Listen to Was the Part Where He Needed a Plan of
Operation or File a Notice. But He\'s Basically Saying \"I Thought I
Could Do That Because Somebody Told Me That.\" So We Need to Make Sure
That We Also Speak with the Same Message On \"I Thought I Could.\" The
Law Enforcement Officer, the Geologist and Surface Management Person,
Even Your Public Counter People, All Need to Speak the Same Message to
the Persons That We\'re Dealing with in this Occupancy Trespass So That
Nobody Gets a Misunderstood Authorization and Able to Play The \"I
Thought I Could\" Defense. The Last One, and I Categorize This as
\"Somebody Else Did It.\" When You Can\'t Say I Didn\'t Know And You
Can\'t Say I Thought I Could, Then \"Somebody Else Did It.\" How Do We
Document \"Somebody Else Did It.\" First of All, We Made Sure They Had
Notices of Trespass in I Didn\'t Know and I Thought I Could, Notices of
Noncompliance, Those Were Specifically Delivered to Them Either by
Certified Mail or in Person So That We Rule out Any Question That They
Knew What the Regulations Were, and That Was ‑‑ They Individually Knew
That. The \"Somebody Else Did It,\" Another Point Is What You Heard
Earlier about Taking Lots of Photos of the Site. It\'s Very, Very
Important That You Take Photos, Because That Will Rule out the \"I
Thought I Could.\" If You Go There and All There Is An Occupancy and
That\'s What You\'re Dealing with and You\'re Working on the Civil Type
Avenue And You Give Them the Notice of Noncompliance, and You Tell Them
What They Are Allowed to Do and Not to Do, and Then They Do Something
You Specifically Told Them They Weren\'t Allowed to Do, Such as
Bulldozing a New Road up The Side of the Hill, Then You Have a Fresh
Violation, a Fresh Knowing and Willful Violation, And Because You Took a
Photo of The Hillside Before the Road Was There, and Now You Have a
Photo With the Road There, You\'ve Pretty ‑‑ You Pretty Much Have Them
on the Somebody Else Did It.

Shumaker: Sounds like You Went Through the Three Standard Bart Simpson
Defenses.

Mclane: it Could Be.

Shumaker: I Think It\'s Lunch Time Now. We Will Go off the Air for a
While and We Will Be Taking a Break and in Our Second Session Today We
Will Look at the Interaction of Administrative, Civil and Criminal
Approaches. Linda Anderson Will Be Back and She Will Fill You in on What
to Do If You Get Sued. Scott Murrellwright Will Join Us For the
Afternoon Question and Answer Forum. Scott Is a Staff Geologist at The
BLM Folsom Resource Area and Scott Has Quite a Lot of Experience with
Residential Occupancy Problems. If You Are Recording the Telecast, this
Would Be a Good Time to Change Tapes. When We Come Back, We Will Be
Right Here on Galaxy 9, Transponder 2. So Keep Those Receivers Set.
We\'ll Give You a Three‑minute Test Signal at 12:00 Noon Pacific
Daylight Time Before We Start. We\'ll See You Then.

Shumaker: Welcome Back to Our Afternoon Session on Mining Claim Use and
Occupancy Management. Our Panel of Experts Is with Us For this Session.
We Have Linda Anderson, Dennis Mclane, Mike Meyer, and Rick Deery Are
All Back with Us. Joining Us from the Folsom Resource Area Is Geologist
Scott Murrellwright. Scott Has Quite a Lot of Experience in Occupancy
Trespassing Cases. Welcome, Scott.

Murrellwright: Hi, Matt.

Shumaker: Linda and Dennis, I Understand You Have Information On the
Interaction of Civil and Criminal Approaches.

Mclane: That\'s Correct. We Intend to Recap on Some of The Items We
Discussed this Morning and Point out Some of The Differences Between
Criminal And Civil. I Wanted to Just Quickly Make a Point and Reiterate
That Criminal Penalties and Use of Criminal Recommend Tease Are Remedies
of Last Resort. That\'s the Intent of Congress And the Policy of the
Bureau of Land Management, and We Are Expected to Be Judicious in How We
Apply the Criminal Remedies And When We Apply Them. I Think Certainly
Our Customers At the Justice Department Would Not Be Too Happy If We
Took the Hundreds of Occupancy Trespass Cases and Rushed out Tomorrow
And Issued Citations and Had All These on Their Dockets. They Expect Us
to Use Our Other Remedies to Screen out Some of These Particular Cases.

Anderson: Yes, We ‑‑ the Courts Are Crowded, and the U.s. Attorney\'s
Offices Are like Your Offices, Doing More with less. But Also It\'s in
Keeping with Your Statutory History and with The Whole Purpose of BLM
Land Management and Supporting Mineral Exploration of the Public Lands
for Us to Try to Work with People Short of Litigation If We Can.

Mclane: Another Point That Needs To Be Made, and We Discovered That Real
Early in Our Discussion about Civil and Criminal, Linda and I, Criminal
Is Best Used When You Have a New Case, Something That\'s Fresh to Where
You Can Document the Violation, You Can Put the Person on Warning and
Then If They Don\'t Comply, You Can Go Ahead and Issue a Citation or an
Arrest or a Criminal Complaint. When We Say New Cases, We\'re Not
Talking about Occupancy Trespasses That Have Been out There for 30 Years
as an Ongoing Trespass N Those Situations You\'re Dealing with an
Entirely Different Venue in Terms of Adjudicating or Handling That
Particular Case.

Anderson: Yes, Civilly the Courts Will Be Much More Receptive to an
Older Case If it Comes in on the Civil Side Because, First of All,
Usually You Will Have a Good History of Trying to Work with Those People
To Get Them into Compliance over Time, and I Think the Courts Are Going
to Be Lenient for Why Didn\'t You Come in with Your Problem Seven Years
Ago If You Had it for 15 Years. Here Is the Long History of
Correspondence Where We Have Been Trying to Get These Folks Into
Compliance Without Having To Come into Court. That Will Work.

Shumaker: it Is Important, Though, That You Actually Have That Seven
Years of Correspondence on File. The Best Correspondence That\'s Not
Documented Doesn\'t Exist.

Anderson: Yes, but Even So, I Would Hate to ‑‑ for People That Have
30‑year Occupancies out There That They\'re Just Now Turning to Think
That They\'re Dead in the Water If They Haven\'t Got a Long History of
Correspondence. You Still Need to Make That Effort. The Fact You Don\'t
Have the Correspondence Doesn\'t Mean That You Haven\'t Had Some
Conversations. Clearly Correspondence Is the Best Evidence.

Shumaker: That\'s Right. If a Case Takes Three Years, it Will Take Three
Years If You Start Today. It Will Take Three Years If You Start Two
Years from Now. The Sooner You Start, the Sooner The Three Years Will Be
Up.

Anderson: That\'s True. Yes.

Mclane: Criminal Remedies Are All about Punishment. They\'re All about
Punishing Somebody for the Act They Had They Did in Hopes of Providing a
Deterrent from Them Doing That Act Again and Set a Deterrent For Other
Potential Violators So They Won\'t Commit That Act, Either, for Fear of
the Punishment That May Come to Bear. So It\'s Not ‑‑ Criminal Is Not
About Collecting the Damages. All of Those Back Rents and All Those
Administrative Costs, All Of Those Sorts of Things. It\'s Actually about
Punishment. In the Misdemeanor Arena Usually The Punishment Results in a
Fine Of Some Dollar Amount in Terms Of Punishing the Person for That
Particular Crime. That Doesn\'t Necessarily Cover All the Costs. About
the Only Thing You Can Get Out of the Criminal Side That Relates to That
Is a Concept Called Restitution, but Restitution Relates to Specific
Damages to the Resource Caused By a Specific Violation, Not Necessarily
an Ongoing 30‑year Sort of Thing. I Think Linda Has Given Us an
Excellent Hints this Morning on How to Collect Some of That Money
That\'s Due the United States.

Anderson: Yes, in a Civil Case, You Can Get Damages for Everything They
Have Done at the Site, Whether a Criminal Violation or Whether it Was
Something less than a Criminal Violation, but Still an Unlawful
Occupancy, Whereas in the Civil Context ‑‑ the Criminal Context, Your
Restitution Normally Is Going to Be Just for the Crime That Was Done. So
the Mercury Spill Maybe You Can Get Cleaned up but Not All Of the Back
Rent and Other Site Disturbing Activities That They Have Engaged in over
the Years.

Murrellwright: a Question Is Come up in the Past, Can We Pursue a Case
Civilly and Criminally at the Same Time? Is it Possible.

Anderson: Yes, You Certainly Can Do That. There\'s Even a Place Where
That\'s Really the Best Way to Go And That\'s Where up Something Really
Set ‑‑ Really Dangerous On the Ground That You Need a Court Order to
Stop. We Can File a Civil Action, Get The Court Order to Stop It, and
Then File the Criminal Matter And Stay the Civil Matter So That
Nothing\'s Going on in the Civil Case until the Criminal Case Is Through
and That Way We Have Kind of the Best of Both Words, We Have That
Up‑front Order Stopping Something We Need To Have Stopped. Then We Do
the Criminal Case and Then We Can Mop up with the Civil Case. That Is a
Possibility. I Would Suggest That You\'re Going to Need Pretty Extreme
Facts to Work with That ‑‑ Work With That Because You Are Tying Up the
Court on Two Different Issues. You\'re Tying up Two Different People in
the U.s. Attorney\'s Office. You Might Want to Decide What Relief You
Really Want and Then Go for the Procedure That\'s Going to Give You the
Relief That You Really Need. Clearly, If You Have Drugs on The Site or
Something like That, Somebody Is Growing Marijuana or Has a Meth Lab,
You\'re Not Talking to the Civil Ride of the U.s. Attorney\'s Office
until You Get to the Asset Forfeiture Part Of That. But That Would Be
Something to Keep in Mind. You Don\'t Ideally Want to Go Two Ways Unless
You Need That Up‑front Court Order and You Still Want to Proceed
Criminally As Well.

Mclane: a Little Principle I Learned a Few Years Back Is a Concept
Called Begin with the End in Mind. \'Think Certainly with Occupancy
Trespass the End in Mind Is to Get the Person Not Authorized to Live
There off of the Public Lands. Now, Sometimes in the Criminal Remedies
We\'re Very Quick to Go Out and Do Something. We Might Send the Ranger
out There and They\'re Going to Find Four or Five Violations of the
Regulations, Scratch out Citations and They\'re Going to Expect this
Particular Case to Go Somewhere, When, in Fact, When That Case Ends, at
Magistrate Court or Wherever, We May Only Have Collected the Fines for
Each of Those Violations, Yet the Person May Indeed Still Be Living
There and In That Case Civil May Be an Important Remedy.

Anderson: If They Ask for a Jury Trial, Your Case May Be Get Thrown,
Because of the Business Of the Courts and Prosecutors, You Will Have
Trouble Getting a Misdemeanor Case into a Jury Trial Situation. A Jury
Trial Is Very Demanding Of the Court\'s Resources as Well.

Mclane: Civil May Also Be the Best Remedy, and I Want to Point Out May
Be the Best Remedy When You Have Threats of Hostile Events. What I\'m
Talking about Here Is When Somebody Is Basically Spoken Their Intent
That They\'re Going to Make Their Last Stand On the Public Lands
Concerning This Occupancy Issue. To Give You an Example, Sort of Like
What Happened in Nye County When All the County Citizens Gathered up to
Oppose the Forest Service on a Road‑building Affair. I Want to Say That
We in the BLM Don\'t Really Want to See Our One Ranger Standing out
There in Front of That Bulldozer and Subject to That Sort of Hostility.
In Fact, a Few Years Back the Department of Justice Had a Major
Conference in Washington, D.c. Dealing with the Rising Hostilities on
Public Lands and Federal Land Issues, and One of Their Big Pieces of
Advice Is That We Need to Be Looking at What\'s Called a Graduated
Approach, That When We Deal with These Kind of Challenges, We Need to
Take a Look at Screening It out at the Administrative Process, Working
Through the Civil Process, So That If We Have Somebody That Wants to
Create One of These Incidents, We Can Manage That Incident in a Civil
Way, So to Speak, by Having Those Discussions in a Courtroom Rather than
out on the Public Lands with Some Sort of Confrontation. It\'s Really
the Best Method. We Had a Situation in Oregon Where We Had a Person That
Decided That God Told Him They Should Claim the Public Lands. Certainly
That Was Not Something We Wanted to Go out and Create This Particular
Event on the Public Lands, So We Took That to The Civil Side and Did So
Very Successfully. And I Think Linda Pointed out This Morning That Also
When You Do That and You Have an Order From the Court, Then You\'re
Going to Get the Assistance of The United States Marshal Service to Help
You with Service Of Those Particular Orders.

Anderson: They\'re the People Who Enforce Federal Court Orders,
Ultimately, If We Haven\'t Been Able to Get Enforcement Again Through a
Graduated Response. So That ‑‑ a Graduated Response. That Will ‑‑
Everyone Would Hate To See a Situation Come to That Level, but That\'s
the Purpose of The Graduated Response, to Just Start One‑on‑one in the
Field With a Ranger Explaining ‑‑ or The Mineral Specialist Explaining
What the People Need To Do to Be in Compliance and If They Can\'t Do
That, That They Need to Get Started Thinking About Where They\'re Going
to Live in a Few Months, Because They Can\'t Continue to Live Where They
Are. Then We Step That up as it Becomes Necessary. But We Want to Have a
History of Trying to Work These Things out Short of Litigation and Then
If We Get into Litigation, Short of Actually Having a Shooting War Out
on the Range.

Murrellwright: Just a Comment, You Were Talking about Inspections, One
of the Best Teams We Have Come up With, and Works Well for Us in the
Field Is When We Have the BLM Ranger And Geologist Working Together Side
by Side Hitting the Ground At the Same Time, and Dealing With the
Claimants on a One and One Basis, Basically at One Individual Time. We
Develop a Relationship from There. It Works Really Well.

Shumaker: Dennis and I Had the Same Experience When We Worked In
Riverside. I Don\'t Know How Many Times I Sat in the Right‑hand Seat
Watching Dennis Drive. Then We Would Actually Get out And Talk to
Somebody after a While.

Mclane: When in Fact Each Person Brings Their Own Skills and Own
Knowledge to That Particular Assignment and Their Own Approach and I
Think the Teamwork Approach Really Makes Good Decision‑making on How to
Proceed, Whether We\'re Working The Administrative Arena, Civil Arena or
the Criminal Arena, They Are All Sort Dovetailed Together and We Need to
Keep Each Other Informed on These Cases.

Shumaker: That\'s Right. It Keeps Us from Making Bad Decisions When You
Have a Good Knowledgeable Team Together.

Mclane: That\'s All I\'ve Got.

Shumaker: Oh, Well, in That Case We Have Some Questions That Do Fit onto
this Before We Move Into the next Segment. This Is a Good Nuts and Bolts
Question and I Am Glad Somebody Asked It. This Is from Pete in Vernal.
Hi, Pete! Glad You Could Call. Call Again. Or Call and Talk to Us in
Person. When a Referral Package Is Sent, Does it Include the Complete
Original Case File? This Is for a 3715 Case. Would the Case File Need to
Have A Cover Letter Certifying its Authenticity, or Does the Package
Just Include Appropriate Excerpts?

Anderson: in My Office, I Would Rather the Agency Keep Their Original
until We Really Need it In the Court, Rather than Have The Original Come
into Our Office. That\'s Just Because I Want to Be Able to Blame You
Guys If We Lose It, Not Me If I Lose It. The Case File That Comes in
with The Referral Isn\'t Necessarily a Document That Has to Go to the
Court. I Think I Know Where the Question Is Coming From, and I Will Be
Covering it Later. There Are Some Cases, Some Kinds Of Litigation, Where
the Whole Case File Does Come In, it Needs That Cover Letter Certifying
It\'s an Original and That It\'s a Complete Copy, but an Occupancy
Trespass Case Where the U.s. Attorney Is Suing Someone to Get Them off
the Public Land, We Don\'t Need a Certified Record at The Front End of
That Case. I Personally Would Rather Get Copies, Have You Guys Hang onto
The Original and Those Negatives Or Those Photographs and All of The
Other Evidence. As Far as Excerpts Go, You Could ‑‑ If There\'s Other
Stuff in Your File That I Haven\'t Included in My Check‑off List, You
Might Run by the U.s. Attorney as You\'re Preparing That Package to Send
In, Tell Them What Else You Have, Because They May Be Interested in It.
I Think ‑‑ I Thought I Had Covered Pretty Much the Kind of Materials You
Would Have That We Would Need to See. If You Have Other Materials, Share
That with the U.s. Attorney and Find out Whether They Want it in the
Package.

Shumaker: Good. Thank You. I Have a Question That We May Be A Little out
of Order On, but I Have the Fax Here in My Hand and I Will Address this
One to Rick. You\'re on the Spot. Are Policies and Guidelines Due Out on
the Generally Uniform Procedures for Implementing the 3715s? Are There
Some Ims Coming out on The Way?

Deery: There Is One That\'s Being Drafted. There Is a Memo Coming out on
The Application of Nepa to the Process. And We Are Probably Going to
Have to Get Together a Manual Section to Put this ‑‑ a Few of The
Questions to Rest. Generally the Idea Behind the New Plain English Regs
Is it All Ought to Be in the Regs as Much As Possible, and That\'s the
Hope. But, Yeah, There Will Be Some More Stuff Come out.

Shumaker: Good. Do You Have Any Idea of When?

Deery: the Flow of Paper in Washington Is Contingent on Many Things, and
I Won\'t Speculate on How Fast.

Shumaker: a Good Safe Answer, Rick.

Deery: Thank You.

Shumaker: Let\'s Move onto the Next Section. At this Point We Would like
to Shift Our Focus to the Topic of What You Should Do in the Event You
Get Sued. I Believe the Handouts for this Section ‑‑

Anderson: A‑41.

Shumaker: Linda, Take it Away.

Anderson: a Lot of What I Am Going to Talk about Has to Do With
Occupancy Trespass, but Some of it Is General Preventative Medicine
Stuff That Doj Likes to Get to the Client Agencies and Client Federal
Employees So You Guys Are Aware Of It. So What Do You Do If You Get
Sued? What I Mean by Sued Is That You Have Gone into Your Office and
Somebody Has Handed You a Legal Paper. It\'s from a Court. It Says a
Court\'s Name at the Top. It May or May ‑‑ it May Be Signed by a Court
Official, a Clerk of the Court, or an Attorney, Because Some of These
Legal Documents That Are Legally Effective That You Do Need to ‑‑ That
You Do Need to Respond To, Maybe Even in Short Order, Are Documents That
May Be Signed Merely by Counsel and Not by a Court. So What Do You Do?
And the Short Answer Is That You Let Your Boss Know as Soon as You Can
and You Let the Solicitor\'s Office Know Within The Hour of Receiving
the Document, I Really Would Recommend. You Don\'t Want to Take Lessons
In How to Tell Whether the Paper Is Something You Need to Respond To
Immediately or Not. So the Best Advice I Can Give You Is, Refer this to
Your Solicitors Within the Hour. They Can Tell You Whether It\'s
Something That Has to Be Acted On with Some Urgency or Whether It\'s
Something That Can Just Be Mailed in and Dealt with in Due Course. A
Final Note for Those of You Who Are Law Enforcement Officers Or Other
BLM Employees Working On Criminal Cases, If the Paper Looks in Any Way
like It\'s Related to an Ongoing Criminal Matter, for Instance, Maybe
It\'s A Paper Where the Party Is a Spouse of a Mining Claimant, or Maybe
the Paper Names Someone Who You Know Is a Witness or Has Some Other
Connection to the Mining Claim, Even Though They\'re Not the Target of
the Investigation, I Would Recommend That You Fax That Paper Also to The
Prosecutor Who Is Working That Case with You So That They Can Be Brought
on Board as Soon As Possible And, Again, Avoid Those Nasty Surprises in
the Courtroom. Now, E Mailed out to You Today, I Believe, in Conjunction
with This Training Program, Is a One‑page Shortened Form of the Handout
That I Have Got Ready, And on it Are Some Important Blanks. Let Me Show
You Those Blanks. Right Ear in the Middle. That\'s for to You Fill in
Your Regional Solicitor\'s Phone and Fax Numbers and Also the Local ‑‑
Your Local U.s. Attorney\'s Office\'s Phone and Fax Numbers. If You Keep
this Page Hand Ay, It Will Have Those Numbers on There for When You Get
the Document. You May Also Want to Give this Paper to Your Receptionist
or Whoever Is the Front‑end Person In Your Office That Deals with Paper
That Comes in the Front Door, Because That\'s a Person Who Needs to Also
Understand That a Paper from a Court Is Not Supposed to Go in the
Mailbox of An Employee Who Is out for Two Weeks on Annual Leave. That
Paper, If ‑‑ in the Named Employee Is Not There, Show it To the Guy\'s
Boss, or Show it to His Colleague, but Get That Paper Work Moving, out
of Your Office as Quickly as Possible, Until You Know That it Is Not a
Nine‑alarm Fire. So Within 24 Hours You\'re Going To Tell Your
Solicitors and You\'re Going to Tell Your Boss, And Maybe the
Prosecutor. Within ‑‑ I Am Sorry, That Was Within the Hour. Within 24
Hours, I Recommended That Unless Your Solicitors Have Told You Otherwise
That You Contact the U.s. Attorney\'s Office and Make Sure They Have
This Paper, Too. That\'s Just a Fallback or a Safety, a Failsafe Kind of
Thing, in Case the Paper Went Into the Box of a Solicitor of An
Assistant Solicitor Who Is on Annual Leave for Two Weeks. You Want to
Have Someone Else Looking at it Just in Case this Thing Came in with a
Red Hornet On it and Needs to Get Acted on Very Promptly. The Kinds of
Things That May Come in That You May Have to Deal with\... You May Have
a Request for Documents. There Are Rules about How the Federal
Government Shares Documents That it Maintains with The Public, and You
Should Have A Foia, That\'s F‑o‑i‑a, Freedom Of Information Act, You
Should Have a Foia Officer in Your ‑‑ Within Your Subdivision of BLM.
That\'s the Person Who Knows How To Get the Documents Together in
Response to Requests for Documents from the Public. Now, Sometimes
You\'ll Also Get a Subpoena from a State Court, for Instance, Two People
That Are in Litigation, like Two Rival Mining Claim Occupants That Are
Having a Trespass Dispute with Each Other in State Court, They Are Very
Likely to Ask the BLM To Supply its Documents Pertaining to Those Files,
to Those Claims, Rather. In That Case, You Want to Make Sure That Those
Parties Comply With Your Agency\'s Regulations About the Disclosure of
Papers That Are in the Agency\'s Files. Those Regulations Can Be Found
At 43 CFR 2.11 Through 2.22. You Don\'t Need to Really Know That,
Though, Because You Are Going to Pass this Information Along to Your
Solicitors and This Would Be Something They Would Be Taking Care of for
You. Let Me Point out One Other Thing While We\'re Talking about
Government Documents, and That Is the Privacy Act. Most of You Have
Heard, and I\'m Going to Reit Rate, Because it Is Important to Know,
That When You Have Papers in Government Files That Are Filed under the
Name of a Person or under an Identifying Number for That Person, like a
Claim Number or a Social Security Number, Those Files Are Likely to Be
Protected By the Privacy Act, Which Carries Criminal and Civil Penalties
for Disclosing the Information in an Unauthorized Manner. So If You Have
Got Files, Personnel Files, Mining Claimant\'s Files, Those Files Don\'t
Go to Anybody Other than The Person Whose Files They Are Without
Checking with Your Solicitors First. You Don\'t Want to Go to Jail
Because You Gave Away Some Private Information.

Murrellwright: Now this Is During an Action We\'re Taking in Terms of
the Privacy Act? If We Aren\'t Taking an Action on Some Mining Claim,
the Records That We Have on File, Then, Are Still Open to the General
Public?

Anderson: No. No. The Privacy Act Attaches to Files Whether There\'s
Litigation Going or Not. If It\'s a File That\'s Protected By the
Privacy Act, and That Pretty Much Means It\'s a File That\'s Got the
Name of the Claimant on It, That File Is Covered by the Privacy Act. You
Can Show it to That Claimant, but You Can\'t Show it To Other People.

Murrellwright: If I Have this Straight, So If an Individual Comes In, a
Rival Claimant Comes Into the Office, and Requests to See a 3809 or 3715
Case File That We Have on Another Individual or Rival Claimant, Can We
Show it to Them If They Request to See It?

Anderson: I Would Check with the Solicitor\'s Office and Find out
Whether or Not Those Mining Claim Files Are Somehow Excluded Under the
Privacy Act, Because If They\'re Covered by the Privacy Act, You\'re
Committing Criminal Violations, Which Also May Carry Civil Penalties in
Disclosing That Information. Now, You Can Recommend That That Rival
Claimant Go down to the County Recorder\'s Office Where He\'ll See a
Copy of the Recordation Notice for His Rival Claimant If the Claimant
Has Abided by the Requirements of Flpma, but I Wouldn\'t Show Anybody
Else\'s Files Unless I Had an Ok, Preferably in Writing, from the
Solicitor\'s Office. Another Thing That You May Get Is a Subpoena to
Testify in Litigation. There\'s Sort of Two Categories That this Can
Happen In: it Could Be Other Federal Litigation Where a U.s. Attorney\'s
Office Wants You to Come in and Be a Witness, and Usually That\'s Not
Going to Be Done Through a Subpoena, They Are Going to Phone You up and
Ask You When You Can Do It, but There Can Also Be Litigation Between
Private Parties That Somehow Has a Federal Connection. For Instance,
Suppose on Your Way out to the Field You Have a ‑‑ You See a Car
Accident Between Two Private Parties. You Stop, Render Assistance and
Get Your Name into the Police Report as a Witness, Because You\'re Doing
Your Duty as a Good Citizen and a Federal Employee, But There\'s No
Federal Interest In this Litigation. So the People Who Want You to Come
and Testify about Whether The Light Was Green in this Private Lawsuit
Involving a Private Collision, Are Going to Have to Again Abide by
Certain Federal Regulations That Each of The Agencies Has. Interior\'s
Regulations on this Are ‑‑ I Will Have to Find it Here ‑‑ but They\'re
in CFR at 43 CFR Section 2.4 ‑‑ 43 CFR Section 2.82. But, Again, You
Sort of Don\'t Have to Know That. Just Know That You Need to Call Your
Solicitors, and Your Solicitors Will Be Telling You What Needs to Be
Done about That Testimony. This Is One of the Things That Can Come in
with a Red Hornet on It, Though, Because this Is One Of the Things Where
the Attorney May Notice You to Appear and Testify at Trial Three Days
Before the Trial. The Solicitors Have to Get a Letter off. The U.s.
Attorney May Have to Get a Motion to Quash on File in The State Court.
They Have Three Days to Do It. If You\'ve Waited 24 or 48 Hours To You a
Bring Tight Their Attention, They Now Have 8 Hours To Do it In. That\'s
Why I Say Get Tight Your Solicitors Right Away Quick and Follow That Up.
If You Haven\'t Heard from Your Solicitors Within 24 Hours by Also
Contacting the U.s. Attorneys. Now, Let\'s Move on ‑‑ Let Pea Get to ‑‑
No, I\'m Going to Skip That. Let\'s Move onto Another Kind of Suit
That\'s Really Likely to Be Seen with 3715, and That Is a Suit That
Happens When You Have Refused Someone\'s 3715 Application and You
Haven\'t Given Them a Permit to Occupy The Public Lands. When That
Happens, There\'s a Judicial Recourse for Those Folks. They Can File an
Action in Federal Court under the Administrative Procedure Act. Now,
under That Act, the Court Will Decide ‑‑ I\'m Going to Use This One ‑‑
the Court Will Decide Based Only on the Administrative Record Whether
Your Action Was Appropriate, Legal, Supported by the Facts. There\'s a
Lot of Magic Words That Are Used in Those Evaluations. The Important
Thing about this Is That It\'s Not Usually Going To Involve a Trial or
Any Testimony. But it Will Involve Your Office In the Preparation of the
Administrative Record. Now Here Is That Certified Record That I Think
Our First Fax Question ‑‑ One of Our Early Fax Questions Here Was
Talking About. Yes, If You\'ve Ever Had an Apa Review of Any Decision
Made by Your Director, or Your Office ‑‑ The Guy in Charge of Your
Office, That Will Have Involved The Record That You Had to Certify. This
Is the Statute That Calls That into Play.

Shumaker: So You Will Be Certifying That Record Is True And Accurate and
Complete, Warts And All?

Anderson: Right.

Shumaker: I Am Sure There Is Some Other Legalese for \"Warts And All.\"

Anderson: Yes, There Is, and Your Solicitor or U.s. Attorney Can Tell
You What That Is. Typically When a Case under the Apa Is Filed, We Have
30, 60, 90 Days Something like That, to Get The Administrative Record on
File with the Court, Depending On How Much of a Hurry the Plaintiff ‑‑
If the Plaintiff Comes in and Requests a Tro, We\'re Going to Need as
Much of The Administrative Record as We Can Get Within Five Days,
Probably. But If It\'s Just a Normal Lawsuit Without Any Preliminary
Injunctive Relief Requested and No Tro Requested, Then You Will
Typically Have 30 or 60 Days to Get That Record Ready. In Any of this
Litigation, If You Ever Need More Time to Get The Documents Ready, Let
the Solicitors Know. If It\'s in Litigation, Let the U.s. Attorney Know.
We Can Usually Arrange to Get More Time, Unless There Is Some Kind of
Emergency Pending up There or Somebody Is in a Real Hurry for Some
Reason.

Deery: Linda, One of the Best Cases in an Apa Case Is a Sound Record.

Anderson: It\'s Really the Only Defense.

Deery: If the Record Isn\'t Complete, If the Record Doesn\'t Support
Your Decision, Then You Have No Defense, and Your Case And Your Decision
Are Probably Going to Come Back to You, and You\'re Going to Do it
Again, the Right Way. We Can\'t Overstress the Need for Document,
Document, Document. Logically Lay out Your Decisions. Logically Back
Them up with Facts, Because If You Don\'t Do Much, a Judge Sitting There
Looking at That Decision Is Going to Say, Wait a Minute, and It Will
Come Back to Us, and it Makes Linda\'s Job Nearly Impossible to Defend
Us in an Apa Case.

Anderson: I Almost Had a BLM Record Thrown at Me in Court in The Early
Days of My Career in Fresno for Some of the Problems I Am about to Go
over. As Rick Has Let You Know Here, You\'re Back in the Swamp of
Evidence with this Administrative Record. Again, We\'re Slogging out
Whether or Not We Have the Facts To Back up Our Decision. Let Me Talk to
You Briefly about Administrative Records. I\'m Going to ‑‑ as Rick Was
Saying, to Reinforce What Rick Was Saying, Your Decision Is Going to Be
Reviewed by an Individual Who Doesn\'t Necessarily Know Your Law, Your
Facts, Your Ground, Your Job, Your Standard Procedures, and They Are
Very Likely to Be Unfamiliar with Your Jargon and Your Acronyms. So
Those Are Your Three‑letter Words, Tlis or Whatever. What You Need to Do
Is Make Sure That Your Record Is as Stand‑alone Complete Record That\'s
Self‑explanatory, and a Good Way to Do That Is Run it by Someone Else in
the Office Who Is Not Familiar with the Case And See If They Understand
It. The Person Who Is Going to Be Deciding If Your Decision Was Correct
Is Also Going to Be Most Interested in Citation ‑‑ in Those Published
Final Versions Of the Laws That I Mentioned Earlier. Don\'t Giver Us the
Public Law. Give Us the U.s. Code. Don\'t Give Us the Federal Register,
Give Us the CFR. Your Solicitor\'s Office Can Help You with That.
Another Thing, and this Sounds ‑‑ this Is Trivia Time Here, I Suppose,
but this Is Why I Almost Got a Record Thrown at Me By a Judge, So I Did
Want to Cover It, That Is, the Person Who Is Looking in this
Administrative Record Needs to Be Able to Find Things in it Easily and
If It\'s Voluminous, And a 15‑year Trespass Occupancy Case Could Have a
Voluminous Record, You\'re Going to Have a Lot of Paper. You Might Have,
You Know, a File This Wide That You\'re Trying to Deal with. To Help the
Judge Find the Information in That File, Do the Following Things: This
Is a Simple One, but Paginate It. Give Us Page Numbers. That Way We Can
Say, Judge, It\'s Page 79 in the Record, Not, Flip Through These Two
Inches of Information, Find a Letter Dated July 14th and Look at the
Third Page. Just Go to Page 79. He Can Do That Ream Easy. Follow
Chronological Order to The Extent it Is Logical in Your Case. If You\'ve
Got a Lot of Mining Claim Location Notices, Put Them In Chronological
Order. If You Have a Lot of Correspondence, Put it in Chronological
Order. That Leads to the Particular Reason Why I Almost Got this Thing
‑‑ the Between the Fact We Weren\'t Paginated and the Fact That We Had
Letters to Which Earlier Letters Were Attached in The File, the Judge
Just Threw Up His Hands and Threw Us out And We Were Back Doing the Case
Over Again at the Agency Level. Where You Have a Letter to Which Someone
Has Attached an Earlier Correspondence, Just Put a Sheet Of Colored
Paper in Front of the Letter and Say, July 14th Letter With Attachments.
September 17th Letter from Last Year, the ‑‑ List Those Things So That
Somebody Looking in the File Will Understand Why There Are Dates Going
Backwards and Forwards in Time in There Because It\'s Letters Attached
to Other Letters. Use Informative Tabs. Mining Location Notices,
Correspondence. If There Is a Particularly Critical Letter, Put a Tab on
That Letter. July 14th, 1996, Letter. If You Know That Letter or That
Mining Claim Location Notice or That Notice of Noncompliance Is Going to
Be a Critical Issue in The Case, Put a Separate Tab for That Little
Document in There So We Can Find it Fast. Another Thing That
Surprisingly Doesn\'t Always Happen from Some Of the Land Management
Agency Records That We Get, If You\'re Attaching Maps, Make Sure
They\'re Folded in Such a Way They Can Be Unfolded and Looked Out
Without Disassembling the Record. I Actually Got a Certified Record with
a Blue Ribbon and a Seal, and it Went All the Way Through All the
Thicknesses of a Folded up Map. We Had No Choice but to Take it Out of
the Seal So That We Could Look at It. Lastly, and We Talked about this
Earlier, Mount Photos with Their Labels on the Same Side So That We Know
What We\'re Looking at Without Flipping Things Around. That Covers What
I Wanted to Advise You about Administrative Procedure Acts. Between What
Rick Said about Make Sure You ‑‑ You\'re Reason ‑‑ Your Reasoning Is
Presented And What I Have Told You about The Mechanics, Something to
Have Your Co‑op Student or Somebody Like That Have Them Do When They\'re
Putting That Paper Together, the next Thing I Wanted to Talk about Is
Common Law Torts. The Most Common Law Torts You Are Probably Going to Be
Involved with ‑‑ in Occupancy Trespass Cases Is the Vehicle Accident You
Had Driving out to The Site.

Shumaker: Before We Go out to The Site, We\'ve Had a Phone Question Here
on Hold, and I Think We Ought to Take this Call And See If We Can Answer
the Question. So If I Remember How All the Equipment Works, Hello,
Johnny, From Show Shown.

Johnny: Yes, I Have a General Question about the Mineral Specialist
Contacting the Solicitor\'s Office. Is it Appropriate to Do That, or Is
it Better for the Area Manager or the District Manager To Contact the
Solicitor?

Shumaker: That\'s an Interesting Question, First Off, Johnny, I Would
Ask You Step Away from Your Receiver or Turn Your Television Back,
Because We\'re Getting Quite an Echo at this End. Linda, Do You Have
Some Suggestions There?

Anderson: That Really Sounds to Me like a Question the Guy Inside the
BLM Would Know Better Than Us. There\'s No Legal Problem with Any
Federal Employee Contacting Any Other Federal Employee, but You Guys May
Have Some Policies Or Protocols.

Shumaker: it Varies All over the Place and One of the Things I Found Is
the Most Effective Programs Tend to Be in Field Offices Where the Field
Workers Are Not Just Permitted but Encouraged to Talk to the Solicitors,
And, When Appropriate, the Assistant U.s. Attorneys to Help Unravel
These Cases. I Think, Scott, You\'re an Excellent Case in Point. You\'re
Talking to Linda and Your Solicitor\'s Office Pretty Frequently to Get
the Job Done.

Murrellwright: Yes, We Basically Have a Direct Line, Shall We Say, to
Linda. But If You Are Starting out Fresh and You Don\'t Have These
Contacts, It\'s Probably More Appropriate for a Supervisor or The Area
Manager or District Manager to Kind of Set up the Protocol First So it
Can Take Place Later on down the Lines So We Have That Relationship. So
it All Depends Again on Where You\'re at and Who You\'re Working With
and Just Check with Your Supervisor or Area Manager and Talk with Them
and See How They Want to You Handle It.

Shumaker: Mike, Do You Have Frequent Contacts with Assistant U.s.
Attorneys, Civil or Criminal, or with the Solicitor.

Meyer: Basically We Try to Establish like a Case Officer, And That\'s
the One That\'s Going To Carry Through the Case and We Handle it in That
Manner, and I Think It\'s Very Effective, like We Said, That We Have
That One‑on‑one Contact with the Solicitor.

Shumaker: Great! Thanks, Johnny. Did We Answer Your Question?

Johnny: Yes, Thank You.

Shumaker: Thanks Very Much for Calling, Johnny, and Let\'s Move On Back
into Common Law Torts.

Anderson: That Automobile Accident That You Had, Let Me Suggest That If
You\'re on a Dirt Road and You\'re Going Around a Blind Corner, You Have
a Greater Than 95% Probability There Will Be Another Car Coming Around
That Corner at You, No Matter That You Haven\'t Seen Any Other Cars All
Day.

Shumaker: I Think That\'s Murphy\'s Law.

Anderson: Yeah, That\'s Murphy\'s Law. Ok. So the Typical Example Would
Be An Auto Accident, but You May Also Be Sued For, Say, Trespass, If
You\'ve Gone on a Mining Claimant\'s Land and They Decide They Didn\'t
Want You There, They May Sue You for Trespass, But, Again, That\'s a
Common Law Tort. In Brief, What Will Happen Is That You Need to If You
Get the Paper on That, You Will Let the Solicitors Know, Let the U.s.
Attorney\'s Office Know, and the U.s. Will Be Substituted in as The
Defendant in the Case, and You\'ll Be Dismissed. Because Federal
Employees Cannot Be Sued for Common Law Torts If They\'re Acting Within
the Scope Of Their Employment. Now, If You Are Dui in That Government
Car, You May Not Be Scoped, Because You Are Not Authorized to Operate a
Vehicle Under the Influence of Drugs or Alcohol. So Be Careful about
That. Another Example I Would Give You Is If You\'re Using the Car for
Government Business, You\'re Covered by the Ftca. If You\'re on Travel
and You\'re Going to a Nearby Restaurant or To a Drugstore for
Something, You\'re Covered by the Ftca as Well. But Do Not, as One of My
Customers, Not a BLM Did, Employee Did, You Don\'t Go on Travel to San
Diego from Ohio And Take the Government Car up To Fresno over the
Weekend to Visit Your Mom and Pin a Pedestrian Against a Telephone Pole,
Because You Are Not Covered If You Are Using That Government Car in an
Unauthorized Manner for non ‑‑ Not for Official Business. The next Kind
of Suit You May Get Involved in These Days Is a Suit for Employment
Discrimination.

Shumaker: Before We Go into That. , I Have to Give a Message to The
Viewers. If a Few Minutes We\'ll Be Going Into a Question and Answer
Period. So If You Have a Question or a Comment for Anyone on Our Panel,
And this Is Your Chance, or If You Would like to Discuss Anything We\'ve
Covered Today, This Would Be a Really Good Time To Give Us a Call or
Send Us a Fax. It\'s Important for You to Know That Linda Anderson Will
Not Be With Us Tomorrow. So If You Have a Question That You Think She
Can Answer, Now Is Your Chance. Now, If Your Question Involves An Active
Case or Contains People\'s Names, Please Respect Their Privacy and
Don\'t Use Their Names. Back to You, Linda.

Anderson: Lawsuit for Employment Discrimination, Only the Agency Head Is
the Proper Official to Be Sued. So it Would Be Bruce Babbitt at This
Time. So You Don\'t Need to Worry about Yourself Being a Defendant in
That Case. With a Narrow Exception. That Is, If You ‑‑ If You\'re
Alleged to Have Engaged in Sexual Harassment of Other Employees on the
Job, and If the Agency\'s Preliminary Investigation of Those Allegations
Suggest That You May Well Have Done That, You May Well Be a Defendant in
a Lawsuit And You Won\'t Have Department of Justice Representation.
You\'re on Your Own If You Engage In That Kind of Conduct. Now, the Law
Isn\'t Set on this Yet, but I Predict That in the Future We\'re Also
Going to See An Exception for Overtly Racist Harassment. We Don\'t
Really Want People like That Working for Us and Hopefully We Don\'t Have
Any People like That Working for Us, But If You Kid Around Too
Earnestly, Either in the Sexual Dimension or Racial Dimension, You Could
End up out on a Limb All by Yourself with No Coverage From the
Government. For That Conduct. Now Back to Occupancy Trespass Kinds of
Things. The Main Kind of Case I\'ve Dealt With the BLM in Is Defending
BLM Employees in Constitutional Tort Cases. This Is the Kind of Lawsuit
Where Someone Alleges You Violated Their Civil Rights. You Went out and
Searched Their Occupancy Site. You Went out and Removed Their Property
from Their Occupancy Site. If You Are Going to Do That and You Don\'t
Have the Right Orders In Place and the Right ‑‑ You Haven\'t Followed
All of the Rules That Are in Your Regulations, You Could Well Be Sued in
a Constitutional Tort Case. Now, in All of These Cases, the Individuals
Who Have Been Sued Have Been Represented by the Department of Justice.
Let Me Say First, I Can\'t Tell You What These Claims Will Look Like
Because No Two of Them Are Alike. They Can Be Anything from Something
Scratched on Toilet Paper That You Can Hardly Read To Something That\'s
Typed up by Some Lawyer That Somebody Who Is Really Serious about this
Has Retained to Represent Him. This Is Another Instance Where Your Basic
Thing Is Get it to The Solicitors Quickly, Get Lawyers Started Looking
at It, And They Can Tell You What You\'re Going to Need to Do. What Will
Happen, If You Are Sued, Is That You Will Be Entitled to Department of
Justice Representation. If I Could Have the Slide, a Slide That\'s on
Store for This, The Department of Justice Is Authorized to Protect Your
Interests up to the Point Where The Department of Justice in Washington,
D.c. Has Made a Decision That You Will, Indeed, Have Department of
Justice Lawyers Representing You in the Litigation. So You Won\'t Have
to Worry about Answering Your Complaint Really Fast or Anything like
That, Because the U.s. Attorney\'s Offices Will Defend You on That
Whether or Not We Have Decided Ultimately to Represent You. I Haven\'t
Seen a Case Yet Where We Have Decided Not to Represent An Employee in a
Constitutional Tort Action. If You Are out There Trying to Protect the
Public Lands, You\'re Going to Be Covered. But There\'s a Lot of Fine
Print.

Shumaker: Excuse Me for a Second. Don\'t Worry If You Can\'t Read The
Form up on Your Screen. It Starts on Page A‑47 and Ends On Page A‑48. So
Can You Follow That Along, And I Think it Would Be a Good Thing for to
You Keep on Hand as Well.

Anderson: You Don\'t Need to Worry about Keeping That Form in Case ‑‑
Well, You Might Want to Look at That Form. When the Time Comes If You
Need One, We Will Be Supplying You With Another Copy That Has the
Information Filled out at the Top. But You Will See If You Scan This
Thing There Are Some Limitations on Department of Justice
Representation. For Instance, We Won\'t Necessarily Represent You at the
Appeal Stage If You Lose below. Perhaps More Importantly, If the People
You Are out There in the Field with Start Doing This, He Told Me I
Could, That\'s Why I Did It, Or, I Went in There and Then the Other Guy
Says, No, We Didn\'t Go in There, If There Starts to Be Finger Pointing
or We Start to Have Divergence of The Facts, We May Have to Withdraw as
Your Attorney Because Now You\'re ‑‑ Your Interests Are in Conflict with
Each Other.

Mclane: Linda, I Think It\'s Important to Point out What We Discussed
this Morning about Searches and Taking Somebody\'s Property, Either
Impounding it Or Seizing, Whatever the Case May Be. Those Are Our Two
Highest Risks In this Arena, When We\'re Dealing with Somebody\'s
Property Or Are Going to Be Searching Their Residential Structure, That
We Need to Make Sure We Follow All the Rules, Because One Mistake, One
Mistake, Can Lead to a Pretty Big Thing Happening to Almost Everybody
Involved.

Anderson: Right, I Have a 34 Defendant Case Where We Took People\'s
Property off the Land, And the Court Ultimately Decided We Did Not Have
‑‑ That We Shouldn\'t Have Done That. And We Settled That Case. But the
Employees Were Represented by Doj, and the Government Paid the
Settlement In That Case. That Isn\'t Always True, Though, When You Read
the Fine Print in In That Doj 399 ‑‑ 99. If You Are Found Liable in a
Bivens Case, You Pay the Judgment. Then You Can Apply to the Agency To
Reimburse You. The Agency May Elect to Reimburse You, but That
Reimbursement Will Come out of Appropriated Funds. So They Have to Be
Available. So When We Tell You to Get a Warrant When You Go in
Someone\'s House, We Mean You Better Get a Warrant When You Go in
Someone\'s House. You Could Be Uncomfortable for a Two, Three, or
Four‑year Period If You Fail to Do That. Lastly, One Thing I Want to
Cover in the Public Lands Arena, There Are Some Counties That From Time
to Time That Have Decided They\'re Going to Take The Home Rule, Which Is
Really a Rather Benign Principle of Municipal Law and They Have Extended
it to Sort of a Claim That Somehow the Counties Own The Federal Land in
Their Counties. If That Happens, There Is Someone in Each U.s.
Attorney\'s Office Who Has the Paper Work to Get You out of Jail If You
Get Arrested for One of These Incidents. We Prefer Not to Do That.
We\'ll Actually Try to Get to You Pay the Bond First So That You Can Get
out on a Bond. But If That Doesn\'t Work, We Are Equipped to Call Judges
at Home. We Have Their Home Phone Numbers In this Package. And Get a
Writ of Habeas Corpus To Get You out of County Jail If You Get Arrested
in the Line of Duty. Let Me Give You My Six Best Pieces of Legal Advice
about How Not to Get Sued. The First One Is That, as Proverb Says, a
Soft Answer Turneth Away Wrath. Be Nice. Be Kind. Count to 10. Be
Polite. You Get the Picture. My next Piece of Advice to Stay Out of
Trouble Is to Drive Defensively. Most of the Trouble I See Is Motor
Vehicle Accidents. The Third Piece of Advice and This Is Serious, and
Not Necessarily Obvious, If You Are Out with Rookies, or You Are a
Rookie and You\'re Going out into The Field, Learn Everything You Can
about How to Deal Safely With That Situation. Talk to the Old Hands
about Their War Stories and Find out The Kinds of Things That Can Go
Wrong. I\'ve Had a Number of Wrongful Death Cases I Have Handled in My
Career at the U.s. Attorney\'s Office in Fresno, and More than Half of
Them Have Involved an Employee in His First Week on The Job. Not
Necessarily a Federal Employee, but That First Week on The Job Where
There\'s Some Physical Danger, as There Is in These Cases. Tass Very
Dangerous Time. Look out for Those Rookies. I Got One Guy That Was
Killed by A Rookie Who Dropped Something On His Head at the Top of an
Elevator Shaft. I Mean, Look out for the Rookies In Two Senses: Protect
Them, And Make Sure That They Know Enough Not to Get You in Trouble.
I\'ll Reiterate Again, It\'s Worth Reiterating, If You Are Going Into a
Federal Rock, under a Federal Rock, a Federal Cardboard Box or a Federal
Shack, Whatever it Is on Federal Land, If Somebody Thinks It\'s Their
Home, Get an Invitation or Get a Warrant Unless You Smell Smoke or
Something like That. There Might Be Some Emergency Reason to Go In. You
Hear Cries for Help Coming From Inside or Something like That. Know Your
Regs and Follow Them. It\'s Very Difficult for Us to Defend You in
Federal Court When Your Regulations Say You Will Give a Certain Notice
and There\'s No Notice in the File That You Did That. Where There Is a
Legally Required Notice, Use Certified Mail So We Can Establish You
Really Did Get it to the Person. If You Personally Hand Somebody, Say, a
Copy of the Regulations, Make a Note in Your Log or Make A Note to the
File That You Personally Handed it to Them on This Date, Because
That\'s, Again, Useful Evidence. Lastly, When in Doubt, in Any Doubt,
Ask Your Solicitors. And the More Serious the Issue Is, Ask Your
Solicitors in Writing. If It\'s Really a Serious Issue. That Way
Everybody Can Be Sure They Know What the Facts Are, And as ‑‑ I Think
You\'ll Find, Too, as You Articulate Your Question, Parts of it Will
Answer Itself for You as You Just Get it down on Paper. But in Any
Event, Ask Your Solicitors Because They\'re Your First Line of Defense
to Stay Out of Trouble. That\'s All I ‑‑ Well, Let Me Refer, Again, to
the One‑page Handout That I Gave You That E‑mailed out Today. Get Those
Fax Numbers Right Away. There\'s Too Many Different Offices Involved for
Me to Fill Them in for You. Find out Who Your Relevant U.s. Solicitor
and U.s. Attorney Are And Get Those Numbers on File And Get Them up to
the Front Desk for Whoever Takes That Incoming Paper. Then I Also Gave
You My Benefit Of My Experience on How to Stay Out of Court.

Shumaker: Would That Be Really Good to Know. The Question about Being
Invited Into Someone\'s Residence or Someplace They Assert to Be a
Residence, We Have a Slide, I Believe Slide 506, That Portrays A Really
Different Sort of Situation, and this Is Where the Occupant, as You Can
See, Has Posted a Know Trespassing Sign, Warning, No Trespassing, this
Is Private Property, Please Don\'t Destroy Anything. Feel Free to Stay
the Night. Then it Goes on about ‑‑ Maybe If You Don\'t Spend the Night
You Will Be ‑‑ Prosecuted for Criminal Trespass. Does That Constitute an
Invitation to Go In?

Anderson: I Haven\'t Had to Look Up the Law on That Particular Issue,
and I Don\'t Want to Guess What the Different Circuits Have Said about
Whether That\'s Invitation. I Have to Tell to You Me it Looks like an
Invitation. So I Might Go in with That, Yeah.

Shumaker: Dennis, Do You Have an Observation on That? Do You Think it
Would Be Safer To Talk to the Individual Who Lives There?

Mclane: I Think it Would Be Safer to Talk to Them First, Although I Want
to Point out I Do Believe in the 3715 We Have Regulations That Relate to
Putting up Signs, and He May Have Needed Permission to Put The Sign Up.

Shumaker: That\'s True. The next Slide in the Sequence, Which Is Slide
507, Represents a Very Similar Situation, Which, In That Sign, It\'s No
Trespassing ‑ Welcome. They Are Sending Mixed Messages Here, Although I
Suppose it Might Be a Defense for the Resident to Claim That They Posted
the No Trespassing Sign And Vandals Added the Word Warning.

Anderson: That\'s a Problem. In Terms of the Constitutional Analysis,
You Wouldn\'t Know Whether the Consent Came from The Person Who Was
Trying to Exert a Right of Privacy or Not. So I Think I\'m Going to Go
along With Dennis on That and Say, Yeah, Don\'t ‑‑ Ignore Those Signs
and Get Consent from a Person.

Shumaker: Probably Best.

Mclane: Especially If You Encounter a Locked Door, Curtains Drawn, or
Other Things That Appear Somebody Is Trying To Exert an Expectation of
Privacy. Better Pay Attention.

Shumaker: We\'ve Had Some Faxes That Came In, and Once Again I Would
like to Invite to You Fax Us Some Questions or Give Us a Call. We Have
Two Questions Here That Are Very Similar from Widely Separated Points at
BLM Offices And One Is from Ridgecrest, One Is from Salt Lake City. I
Will Start with the Ridgecrest One. Don\'t Answer. They Are Similar.
It\'s My Understanding That Most BLM Documents Are Public and Can Be
Viewed or Photocopied by Anyone. How Does this Fact Comply with The
Privacy Act? Also Please Explain the Privacy Act. Going on to the next
One This, One from Salt Lake City, it Seems That the Assistant U.s.
Attorney Is off Base on Whether Mining Claim Files ‑‑ Can You Read That,
Rick?

Deery: in General.

Shumaker: in General. Thank You. Are Subject to the Privacy Act. All BLM
Offices Allow Public Inspection of Such Files. Can You Clarify this
Subject?

Anderson: I Can\'t Clarify it Without Looking it up in Some Law Books.
The Privacy Act Is the 5 Usc 552 A. What it Covers Are Records Filed
Under Somebody\'s Name ‑‑ or an Identifying Number That Goes With Many
Name, like a Social Security Number or a Military Registration Number.
It Doesn\'t Extend to Other Records of the Agency, Just to Records That
Are ‑‑ That Are Housed in a Filing System That You Get into Physically
or in a Computerized Filing System That You Get into by Use of the
Person\'s Name or Identifying Information. So, Yes, a Lot of BLM Records
Are Going to Be Public Information. As Far as Whether Mining Claim
Records Are Privacy Act Protected, I\'m Going ‑‑ I Don\'t Know Whether
They Are or Not. I Think What I Had Said Earlier Was Find out from Your
Solicitors Whether They Are or Not, Because If They Are Protected, You
Don\'t Want to Find out Because You\'ve Committed the Violation. So
Before You Disclose Anything Where There Is a Question about Whether
It\'s Protected or Not, And You Know the Question Has to Arise If it
Says, You Know, \"Joe Blow\" or \"Joe Blow\'s Mining Claim,\" Then You
Know That You\'re Going to Have to at Least Ask the Solicitors Whether
There Is Any Protection of the Privacy Act for this ‑‑ for That
Material. Now, the Privacy Act Is Simply a Statute That Congress Passed
in The \'70s, I Think, That Says That Government Records on Individuals
Are Private, and They Can\'t Be Shared. When the Government Asks People
To Give the Government Information about Themselves, The Government Has
to Have a Legitimate Reason for Asking for That Information, and the
People Who Give Us That Information Are Entitled to Know That We Aren\'t
Going to Turn Around and Give That Information Away to Other People.
That\'s What the Privacy Act Is For.

Mclane: I Have Something to Add There, Matt. In the 43 CFR, in the First
Volume, the Department of Interior Has Published the Systems of Records
That They Consider under the Privacy Act. I Know in Particular That One
of Those Is Trespass Case Files, Is Actually Listed in There as a System
of Privacy Act Records. So it Would Be a Good Idea for Our Audience to
Take a Look at That First Volume of the CFR, 43 CFR and Look at Those
Particular Systems of Records. I Also Want to Point out with Criminal
Cases Then You\'ve Got Something Else, Exemptions under The Freedom of
Information Act, For Active Criminal Cases. So If We Have Opened a
Criminal Case, Some of That Information May Be Exempt from Disclosure.

Anderson: the Two Acts Sort of Work Together. Under the Freedom of
Information Act, People Can Ask the Government Agency to Disclose
Records However They Have Defined What They Want to \<Spell\> Z
Sometimes They Say They Want to See Records That Are Covered by the
Privacy Act. Well, There Is an Exception in Foia So That We Don\'t Have
to Fork over Records That Are Protected by the Privacy Act. So Those
Statutes Work Together. Your Geographic Subdivision of BLM Should Have a
Foia Officer.

Shumaker: in Fact, Most Offices Have a Foia Officer.

Anderson: and the Foia Officer Probably Knows the Privacy Act, Too,
Because They Are So Interrelated. That Might Be the First Place to Go
with a Question about Whether Something Is Covered or Not, and Then Go
on to the Solicitor If There Is Some Lack of Clarity. Because of the
Stiff Penalties, You Don\'t Want to Violate the Privacy Act. So You\'re
Better off If There Is Any Doubt to Keep Going until You Really Find
Someone Who Knows What They\'re Talking About. As Far as Me Being off
Base, Not The First Time. But the Solicitors Are Going to Know about
Your Particular Agency\'s Records.

Shumaker: I Just Read Them. I Don\'t Explain Them. I Think this Is
Something That We\'re Probably Not Going to Get Settled Here, So My Best
Advice To People in the Field Offices Is Check with Your Foia Officer
And Follow it up Before You Let Anything Loose. I Know When I\'m
Providing Training Materials I Am Always Very Careful, or Usually Very
Careful, to Make Sure That Names And Locations Are Altered So as To
Protect People\'s Privacy.

Anderson: in Fact, in the Handouts for My Morning Session, I Included a
Couple Pleads I Had Used in Some Other Litigation. One Is a Complaint
for Ejectment, Nuisance and Trespass And the Other Was a Motion to
Dismiss, Which I Included Because in it I Summarized What Tim Carroll of
the Folsom Resource Area Had Taught Me About the Sequence of Mining Laws
from 1872 to 1955 to 1976 And I Found That That Little Overview Might Be
Helpful for You in Explaining the Mining Law Statutory History to Some
Other Assistant Who Might Be less Familiar or Might Not Have the Benefit
of Hours on the Phone With Tim Carroll Trying to Make Me Smart about
That. So I Included That, and You Will See That the Names of the Guilty
Or the Names of the Defendants In That Case Have Been Blacked Out to ‑‑
out Of, I Think, an Overabundance of Caution on the Privacy Act in That
Case. Because Those Were Documents Filed with the Court. Nevertheless, a
Good ‑‑ a Good Model of How to Be Careful about That.

Shumaker: When I Saw That in From You, I Realized That the Name of the
Person Involved Was Not Essential to Learning What The Contents Were. So
out it Went.

Anderson: That May Have Been an Overabundance of Caution but it Would
Certainly Be Better to Be More Cautious than less.

Shumaker: We Had a Question That Came in Earlier on Whatever Happened to
Our Good Old Familiar Regulations at 43 CFR 3712?

Deery: They\'re Still There. We Haven\'t Yet Gotten Rid of Them, Matt,
Although We Could Possibly Get Rid of Them, and It\'s Been Discussed, as
You Know, the Administration Has an Objective of Reducing the Size Of
the Federal Register. The Question Basically Says Under the Old
Regulations We Held Hearings Before a Judge in The Offices of Hearings
and Appeals to Determine If Occupancy Was Reasonably Incidents to
Mining. What Is Their Role in These Cases Now? Now, as Some of You May
Recall, We Said We Would Have a Contest, And We Would Take Someone up to
An Alj and Have the Facts in the Case Argued Over, and One Case That
Comes to Mind, I Think, Finally Went Completely Through That Place Was
‑‑ to That Place Was Lee Jesse Peterson, a Colorado Case. With the 3715
Regulations, 43 CFR 3712 Is Really Moot. There Are Some Useful General
Guidelines, Useful General Policy Statements, and Then There Are Parts
of it That Basically Parrot the Law, and So That Process Has Been
Superseded With the 3715 Process, and If We Work at it with the next
Round Of Reg Rewrites, We Can Perhaps Get Rid of 3712 or the Parts of
3712 That Are No Longer in Extant. Now to Ancillary\'s Question, Do We
Use That ‑‑ Do We Initiate Contest Actions? No, We\'re Not Going to
Anymore.

Shumaker: Now, That\'s 3712, Not 4712. Your Television May Have Shown It
as 4712 a Few Seconds Ago, But It\'s Actually 3712, 3‑7‑1‑2. 4712
Probably Has Something to Do with Grazing.

Deery: Sounds like It, Cows. We Actually Had Another Question That Came
in from the Tonopah Forest in Nevada. They Mentioned the Title of the
BLM Manual and They Said They Don\'t Think They Have It. You\'re
Probably Right. The Manual Title Is Called \"Compliance, Assessment,
Safety, Health and the Environment Protocol Manual.\" Sometimes Known as
the \"Cash\" Manual this. Didn\'t Become Known Around Our Office Either
in the Minute ‑‑ Solid Minerals Shop or in the Compliance Shop That this
Thing Even Existed, and Some of Us Looked at it and Said \"Oh, My, This
Is Interesting.\" I Got My Copy from Ralph Costa In the Arizona State
Office. If You Want to Find out How to Get a Copy, Send Me Either an
E‑mail to Rdeery@groupwise or \@BLM.gov If You Come Through the
Internet. If Modern Technology Eludes You, Call Me and We Will Try to
Get a Copy Run Through the Xerox Machine. As You Noted, That Is a Rather
Thick Manual. I Also Want to Point out That It\'s One of Those Kinds of
Manuals That It\'s ‑‑ It\'s a Tool. It\'s Designed to Let You Assess The
Degree to Which You Have Environmental Liability. In the past 30 Years,
Corporate Environmentalism Has Gone from Heresy to Dogma, and There Is a
Vast Amount of Literature out There on How Companies Stay in Compliance
with the Various Environmental Laws. There Is a Cottage Industry That Is
Writing, Selling and Putting These Books out. It Only Makes Sense That
If They\'re Looking to These Volumes To Determine Whether or Not
They\'re in Compliance, We Ought To Look to These Volumes and Ask, Are
We Singing All off the Same Sheet of Paper Here? And the \"Cash\" Manual
Is the BLM\'s Version of What Is Our Liability Exposure. You Can Find
Lots of Health, Safety, Environment Liability Risk Assessment Literature
out There. This Is a Good One to Start. We Can Probably Get it to You
For next to Nothing. You\'ll Have to Pay a Lot of Bucks for a Lot of
this Private Party Literature. Some of It\'s Useful, Too. We Raise it as
a Point to You Because this Is a Starting Point. How Do I Inspect an
Operation? Here\'s Some of the Questions That You Can Begin by Asking.
And it Lays it out in a Logical Fashion, and That Will Very Often Go a
Long Way to Focusing Your Thoughts on Some Aspect of An Operation.

Shumaker: Great. Well, We Have a Question That Just Came in from
Phoenix, and It Sure Didn\'t Have to Travel Far. Some of You May Know
That the Folks from the Arizona State Office and the Phoenix Field
Office Have Come to the Training Center, and They\'re Viewing this
Program on the Second Floor. We\'ve Actually Been Waiting for This
Question All Day. We Actually Thought Gordon Pine In Tonopah Was Going
to Ask It, But it Came from Byard in Phoenix, and That Is, Are We Going
to Have a Worst Tie Contest this Year? Well, We Were Kind of Thinking
Maybe We Would Have a Best Tie Contest, Although Byard Thinks That
Mike\'s Tie Probably Would Win the Contest this Year for The Worst Tie.
You Have to Understand That Last Year, Mike, Dennis Wore It, and Dennis
Was in Uniform and Had The Brown Tie. We Passed the Tie, as it Were Onto
You. So If You Would like to Let Us Know Who Has the Best or Worst Tie,
You Can Fax That Later this Afternoon with Your Comments on The Course.
We Did, Each of Us, Try to Come Up with Something Really Dreadful to
Show You Today.

Deery: Some More Dreadful than Others.

Shumaker: Yeah. I Hope We\'re Not Violating Anyone\'s Copyright by
Sending That out over the Airwaves. Fortunately Chip ‑‑ Oh, I Was About
to Say That Chip Hadn\'t Gone in Tight on Mine, but I Guess It\'s Too
Late Now. This Tie My Daughter Chose for Me, and She Insisted That I
Wear It Today. So, Jennifer, When You See This, Here it Is. Now, We Had
a Question ‑‑ Actually, More of a Comment That Came In, and One of the
Problems I\'ve Got Here Is Paper Management. I\'ve Lost the Comment.
There it Is. This One Came from an Office, And Really the Author Is Kind
of Requesting Anonymity and Considering the Fact That I\'m Holding this
with Asbestos, I Don\'t Blame the Author for Requesting Anonymity. I\'ll
Try to Hit the High Points Here. Apparently Lind Anderson Is Willing to
Take a Case, Warts And All. On the Other Hand, There Are Some Solicitors
Offices That Refuse to Take Cases Where There Is Some Question as to
What the Law Really Is. In Other Cases, the Solicitor States That it
Won\'t Take a Case To Ibla Unless the BLM Provides The Case Law
Citations, and the Question Is, Who Here Has a Law Degree? We\'re
Geologists and Mining Engineers, and it Goes on from Here. Before I Give
it to You, Linda, There Is a Comment I Would like To Make, and It\'s
Kind of Barbed Also, and the Comment Is: I\'ve Reviewed a Number of
Cases over The Last 10 Years or So That Have Come Back from the
Solicitor\'s Office for Whatever Reason Saying They Wouldn\'t Take The
Case, and Those Are the Cases, in General, Where I\'ve Opened up the
Case File and Things Fall out. Generally, You Can Be Real Sure That Your
Solicitor Is Not Going To Take or Even Think of Taking A Case That
Isn\'t Well Documented, and the Suggestions That Linda Gave You this
Morning You Ought to Take to Heart. If You Make it Easy for Them, The
Chances Are Pretty Good That They\'ll Take Your Case. Linda, Do You Have
Any Observations?

Anderson: Well, There\'s Several Different Kinds of Bureaucratic
Problems Here. One Is That There Are People Who Aren\'t Living up to
Their Job Expectations, and They Can Be in The U.s. Attorney\'s Office
or The Solicitor\'s Office or the BLM Field Offices and If That\'s The
Problem, There\'s Always My Boss Can Talk to Your Boss, and Maybe They
Can Straighten it Out. A Route That I Have Sometimes Taken When I Have
Needed Assistance and Haven\'t Been Able To Get it from the Agency.
Another Thing Is That the Purpose of Letting the Attorneys Know What the
Warts Are Is That It\'s like Scene Ii of the Movie \"Henry V,\" the 1989
Version. There Is Usually in a Government Case ‑‑ That Whole Movie Is
like Litigation. The First Act You Had to Decide Whether it Was Mete and
Just for You to Go to War. We Have to Decide Whether We Do Litigation.
In the Second Act, Henry Is Betrayed by Higher‑ups on His Own Staff, Who
in His Case Have Sold out to France. In Our Case, It\'s Somebody Who
Hasn\'t Done Their Job Right, Something Is Lacking in the Paper Work,
Somebody\'s Made a Promise They Shouldn\'t Have Made Or Whatever. But
There\'s a Betrayal on Your Own Staff Going on There. That\'s the Warts
We Want to Know About Because We Can Deal with Them. Henry Had Their
Throats Cut, but We Can Deal with Them. And Then in Act Iii, We Go Off,
And I\'ll Talk about Settlement And Bluster and Threats And, You Know,
Henry Was on His Last Leg When He Gave That Wonderful Speech\... \"Once
More unto the Breach, Dear Friends, Once More.\" They Were on Their Last
Legs, But They Were Still Inside a Standing Wall and Opening the Gates
for Henry. Both Were about to Fall Down, But Neither of Them Knew That
For Sure. That\'s What Settlement Is like In Litigation. But the Whole
Thing Is That You Need to Know as Much about Your Case as You Can. There
Isn\'t Going to Be a Case Without Warts. We\'re All People, Too. We May
Be the Federal Government, but the Federal Government Only Has Mere
Mortals Working for it and There Is Always Going to Be Warts. We Just
Want to Know What They Are Before We Get into Court Rather than after.
And There Will Be Warts That Are Going to Be Fatal. Like I Said, If You
Have Given a Life Estate to an Occupant, If You Have Given Written
Permission for Them to Have That Mill Site There in Perpetuity, It\'s
Going to Be Tough for Us to Say, Oh, Well, We Take it Back. We Actually
Can. There\'s Some Law That the Government Can Make Misrepresentations.
We Can Work on the Problem. But We Need to Know What the Problems Are
That We Need to Work On, Because We Need ‑‑ They May Suggest Other
Avenues Besides Litigation We Should Explore First. We Just Need to Know
What the Whole Problem Is to Solve It.

Shumaker: Also, I Don\'t Want to Give the Impression That I Was Dumping
on the Person Who Sent Us this Fax. I Understand the Absolute Abject
Frustration That You Have When a Case That You\'ve Bled for and That You
Honestly Think You\'ve Done a Good Job Is Just Returned To You in What
Seems to You to Be a Cavalier Manner, And, Rick, You May Have Some
Comments on What to Do If That Actually Happens.

Deery: Well, If That Happens, And it Happens on a Regular Basis and
Patterns Begin to Emerge, Then the Answer Is, Your Boss Needs to Talk to
His Boss, And They Need to Come Back to The Assistant Director. The
Assistant Director Once a Month Meets with the Washington Office
Solicitors and They Have Discussions about Cases and this Is the Sort of
Thing That Needs To Come Back, All the Details Logically Explained,
Logically Laid Out, So That Our Management And Their Management Can See
If There\'s a Problem and Can Move To Address That Problem. It May Be
That the Case That You Bled over Is Insufficient. It May Be That the
Case Is Not Going to Rise to the Level of What You Thought. Well, All
Right, If That\'s the Case, My Answer Is Short and Sweet: Cope! Your Job
Isn\'t Your Kids. Your Job Isn\'t Your Private Life. Don\'t Let it Tie
You up in Knots. Accept the Things You Cannot Change. Have That Wisdom.
But at the Same Time, When You Have Something Before You like That, Send
it up the Chain. If Higher Authorities Can\'t Work It Out, Well,
There\'s No Black Mark on Your Record.

Shumaker: That\'s Right. Keep Track of Them, and Let Rick Know.
Basically If You Don\'t Keep Track, it Didn\'t Happen. We Have a Call
That Just Came in Now. So Let\'s Go to Pete in Vernal. Hello, Pete.

Pete: Hi, Matt. How Are You?

Shumaker: Pretty Good.

Pete: I Have a Question about I Have a Question about Running Utilities
to Use or Occupancy That the BLM Has Determined Not ‑‑ or We Don\'t
Concur with It, And I Was Just Wondering If Anybody on the Panel Has Had
Experience with That, Let\'s Say, For Instance, Somebody Calls ‑‑ Or
Sends in a Right‑of‑way Request. Should We Be Looking at Denying The
Right‑of‑way? Or If They Come in with it under 3809, Basically.

Shumaker: in Essence, Pete, Are You Asking Where You Have an Occupancy
That You Have Determined to Be Unauthorized, Although You Haven\'t Gone
to a Point of Ejectment or a Complete Litigation, Now They Want to Bring
in an Electric Line, Should We Deny It?

Pete: Right.

Deery: Well, If You\'re Going to Handle the Electrical Line as a
Right‑of‑way, Right‑of‑way Is Discretionary and We Can Deny That. Under
the 3809 Regulations, They Do, Indeed, Have the Right to Send in Power
under the Plan or Notice, but You Can Make an Argument That it Is
Unnecessary Or Undo Due and Once We Tell You Your Occupancy Is Not
Reasonably Incident, If You Look Around 3715, You\'ll Find Some Much
More Substantive Penalties That Say Don\'t Do It. So, Yes, It\'s
Perfectly Legal to Say, No, We Don\'t Want You in There, and We Don\'t
Want You Running Power to It.

Shumaker: So, Pete, Does That Take Care of the Question for You?

Pete: Yes, it Does. Thank You Very Much.

Anderson: I Would Add, Pete, Make Sure You Document That Decision Well,
Because If They Decide to Take You to Court About Your Refusal to Give
Them Their Power Line, You\'re Going To Want to Have Something That
Succinctly but Clearly Lays out All the Reasons Why You Thought That
Power Line Wasn\'t Called For.

Shumaker: Ok. Great.

Murrellwright: I Was Just Going To Say, in California, If Anyone Else
out There Has Input on This, If a Right‑of‑way Is Applied for It\'s by
Pacific Gas & Electric or Smud into the Mining Claim. We Would Be Deny
to Go Pg&e, Not The Claimant. The Claimant Has the Right to Hook Up, and
They Don\'t Necessarily Need Our Concurrence With It, at Least until the
3715s. So the Right‑of‑way Would Be Requested by the Utility, but The
Claimant Could Actually Hook Up to That at Their Discretion.

Shumaker: Pete, Thanks Very Much For Giving Us a Call. It Did Bring up
an Interesting Line of Questioning, And, in Effect, Again, Thanks, Pete.
There Is a Corollary to That Question That Comes up a Lot, And Let\'s
Assume for the Moment That They Are Already Hooked up To Electricity,
Whether They Got Authorization or Not, Probably Not, but Nevertheless,
They\'re Getting 110 Volts or 220 Volts From Anybody from Pg&e to Sierra
Pacific, to Southern Cal Edison, Who Knows. When Can We Turn it off?

Murrellwright: Our Experience Has Been If They Are Hooked up To Pg&e or
Smud, They Won\'t Shut It off until They\'re out of There, Regardless of
What We Want.

Shumaker: So It\'s Not Generally Considered to Be Good Technique For Us
to Go in with Insulated Bolt Cutters and Cut the Lines Before They Move.

Deery: the Power Companies Might Not like That at All.

Shumaker: I Am Sure. And I Am Sure There Is Some Safety Requirement That
Prevents From You Doing it Anyway. Good Advice. We Have Another Question
Here And It\'s Excellent. This One Is from Neal Breckheisen and It\'s
702 Area, Code, So I Will Assume It\'s Nevada and I Will Run it Through
Quick, and Rick, I Will Give You This. The 3715 Regs as Written Miss
Most Actual Situations. The 3715s Assume Public Land Users Ask First.
They Don\'t. Most of Our Cases Are Old, Long‑term or Sporadic Problems.
The Regs Talk Around Most of Our Actual Situations. Can You Fix It? I
Would like to See a Simple Flyer Which Tells Most of Our Occupants What
the 30 U.s. Code 612‑a Citation Means. For Most Other People, That\'s, I
Believe, What Pl ‑‑ That\'s Pl 167?

Deery: Yes.

Shumaker: Requiring What Reasonable Incident Uses of a Surface of a
Mining Claim. What Does BLM Expected of These People. These Are Not
Usually Sophisticated People. I Will Keep it Simple.

Deery: Neal, If Would You like To Write That Brochure, We Are Happy You
Have Chosen to Volunteer. No Good Deed Goes Unpunished, I Might Add.
These Regs Don\'t Attempt to Talk Around. They Attempt to Address
Existing Occupancies as Close to Head on As Possible. You Have a Number
of Days, in This Case One Year, to Get Yourself Right with BLM, Right
With All the County and State Ordinances, and BLM Then Has the Duty,
Either Immediately or Sometime in the Future, to Go Out, Depending on
its Schedule, And Decide Whether or Not You\'re Reasonably Incident and
We Will Reach a Determination. We Will Say You Are Either Reasonably
Incident or You Are Not. We Recognized Early on in Drafting These
Regulations That We Had a Lot of Folks Who Are Out There. We Were Aiming
at Two Birds with One Stone, the Existing Occupancies and the New
Occupancies. The Idea Was to Create a Toolbox That Had Enough Widgets in
it So That You Could, in Fact, Go out And Address Both Kinds of
Activity. If You Look Through the Section That Begins with the Question,
What Do I Do If I Have an Existing Occupancy, and You\'ll See, Well They
Have the Year\'s Grace Period. What Will BLM Do When the Year\'s Grace
Period Is Up? We Will Come out and Inspect. And What Will BLM Do? We
Will Advise Them What We Find. And If We Say It\'s Not Reasonably
Incident, Then at That Point We Begin to Take the Steps of Resolution,
Which Could Lead to Authorization under a Different Set of Regulations,
Matt, or under a Recreation Permit, or We Can Lead to a Demand to Leave
the Public Lands And Ultimately Ejectment and Possibly Litigation, If it
Comes Down to That. So, You Know, Admittedly, the New Testament Version
of the Regulations Written in the Sing‑song Question‑answer Period
Doesn\'t Address Existing Occupancies the Way the Old Version Did, but
They Are There, And We Do Have the Full Array of Tools to Use on
Existing Occupants. Note When That We Say Your Occupancy Is Legitimate
and It\'s Allowed, Then Immediately, Even Existing Occupants, Are
Subject To the Standards of Practice That Are Laid out in this
Regulation. So at Some Point, You Can Begin To Ratchet the Things down
Tighter and Tighter So That They Become Much Better Operators, Maybe Not
Sophisticated, but They Can Become a Better Operator as We Go out and
Tell Them That You Can\'t Poor Raw Sewage on the Ground. You Can\'t Dump
Your Trash out Back. You Can\'t Do this. You must Look like That.

Shumaker: Another Point I Would Like to Make about That Is Neal Pointed
out That Many of These Problems Are Long‑standing, and We Have Been
Dealing with Long‑standing Problems All Morning, a Long‑standing Problem
Is Going to Take Some Civil Litigation and it May Take Some Time. There
Is Nothing in the Regs Here That Say this Is Going to Be Fast.

Deery: Exactly. When the Regs Were Crafted, Everybody Understood That.
The Hill Understood It. The Political Structure of the Previous
Administration Understood That. And this Administration\'s Political
Structure Understands That It\'s the Problem of 40, 50, 60 Years of
Neglect on the Part Of Land Managing Agencies.

Shumaker: They Have Another Question That Come in from Wenatchee, and
this Is a Good Question, Because it Happens a Lot N this Case, What
about Inspection of Locked Buildings That Are Not Used for Residential
Occupancy, Such as Storage Buildings, Do We Go into Those and Inspect
Them? What Do We Do?

Mclane: I Think, Matt, That Falls into the Purview of What We\'re Doing
There. We Are There to Inspect for Mining Use and Occupancy. We Are
There to Inspect Whether Or Not Mining Is, Indeed, Occurring. If Those
Outbuildings Are Supposedly Used for Mining Purposes, We Need to See the
Insides of Those. If They\'re Used, However, for Residential Occupancy,
That\'s What Makes it a Search Warrant Issue.

Shumaker: the Situation I Used In Encounter a Lot Is I Would Be Out in
Eastern Riverside County, And I Would Encounter a Mining Camp, Nobody
Was There, There Would Be Locked Outbuildings. I Couldn\'t See In. How
Would I Find out? Would I Have to Get in Touch With the Claimant and
Operator And Come out at a Time When They Could Use the Key or Do We Use
The Meat Ax Approach and Let Ourselves In.

Mclane: the First Step Is to Find out Who the Claimant Is, Locate That
Claimant and Ask Them to Meet You at the Site and Allow and Allow You to
Inspect Premises. When You Start Cutting Bolts, Locks, Fences, You Start
Getting Into That Property Arena Where You Are Going to Have Risk for
Some Problems.

Deery: Let\'s Go Beyond Just the Legal Risk. Remember the Director\'s
Safety, In All Things, Safety First. Take a Set of Bolt Cutters. Open up
a Building, and Step Into a Hazardous Materials Spill And Cough Your
Lungs out One at A Time. That\'s Not What We\'re Here for. Don\'t Go
into Something If You Don\'t Know What\'s Going on in There. Find
Whoever Has the Key and Say, \"We Need to Go and See What\'s Going on in
There.\" Do Not Interlocked Buildings. Now, it Is Perfectly Appropriate
To Find out Whether or Not a Large Structure Is Being Used as A
Warehouse or Whether It\'s Being Used as a Meeting Hall. The Meeting
Hall, Obviously, Is Not a Mining Related ‑‑ or Bingo Hall. Obviously
It\'s Not a Mining Related Activity. Storage of Equipment, Storage of
Dozers Is Acceptable, and If Somebody Is Doing That, it Shouldn\'t Be a
Problem to Get That Key from Them and Go in and Take a Look. If They
Begin to Say, Well, I Don\'t Want You Going in and Looking in There,
Then it Seems To Me That You\'ve Got Enough Cause to Go and Think About,
Do I Want to Have a Search Warrant In That Case? Because There May Be
Something Going on in There That Isn\'t Quite Kosher.

Murrellwright: I Have a Question, an Incidents That Took Place in Our
Resource Area a Few Years Back, Has to Do with the Question of Tarps,
Equipment or Vehicles That Are Covered in Tarps. Do We Have the
Authority to Lift Those up Without Verbal Ok by a Claimant?

Anderson: I Don\'t Know That There Is an Answer to That Question. I
Think That\'s a Close Call. If the Tarp ‑‑ It\'s next to a House
Somebody Is Living In, There Is Some Authority That You Can\'t Even Lift
the Tarp. The Problem Is It\'s Not in Plain View. You\'re Getting into
the Plain View Doctrine. If There\'s a Tarp over It, It\'s Not in Plain
View. So Unless You Have Some Other Reason Why You Would Be Able To, You
Know, Move Stuff Around Inside Somebody\'s Car to See What\'s Going on
in There, by That Same Analysis, I Would Be Hesitant to Lift up That
Tarp. So That Would Be ‑‑ That Would Be the Advice I Would Give Now.

Shumaker: Again, If We\'re Going Out and Looking at These Operations or
So‑called Operations And, as Dennis Pointed out a Moment Ago, Our
Purpose Is to Determine If They\'re Residential or Not and If You\'re
out There with the Resident or Claimant and You Come up to One of Those
Locked Buildings and You Can\'t See Into, You Say What\'s in There, And
You Say, Well, That\'s My Residence, That Question Has Been Answered.
You Now Have Established the Fact There Is Something There That They\'re
Asserting to Be Residential, and Can You Move From There. It May Later
Turn out That They\'re Storing Ufo Parts.

Mclane: on the Other Hand, If They Are Storing Equipment in There That
They Believe Is Equipment They Need for Mining, Milling and Prospecting,
in My Experience, They Have Been More Than Willing to Show All of That
To You, Because That Helps to Prove Their Point That They Have A
Legitimate Reason to Be There.

Shumaker: Have You Found That, Too, Mike?

Meyer: Yes, Very Much So. You Have a ‑‑

Shumaker: You Have a Fax in Front of You from Salt Lake, Rick.

Deery: I Love Budget Questions. I Love Budget Questions. Everybody Loves
Budget.

Shumaker: We\'re Saving the Budget Questions until Late in The Afternoon
When We\'re All Sleepy.

Deery: it Says in the Fy‑98 Pawp Directives Mining Law Administration
Did Not Require Us to Show the Number of Cases We\'re Going to Inspect
in Each State. Is There a Reason for Not Treating this Workload via the
Pawp Narratives? When the Pawp Was Drafted, We Had in There That We
Would like You to Tell Us How Many You Thought You Could Do, Given Your
Resources. Given the Way the Pawp Worked This Year, We\'re Not Sure
Exactly, at Least I Haven\'t Had An Opportunity to Look at Exactly the
Language That Went Out. Our Pawp Person Had a Family Emergency, and We
Had to Have Some People Step in and Pinch‑hit, and So If it Didn\'t Come
out Looking like We\'d Sent It In, We\'re Sorry, We\'re Only Human. What
We Intended for the Pawp to Say Was, \"Go after Those Cases That Are a
Threat to Health, Safety and the Environment. Go after Those Cases That
You Can Fold into Your Inspection Program for 3809 and Affirmatively
State That They Are Legal Operations. And Leave All the Rest Alone.\"
The Third Part of it Was, \"Tell Us How Many of These Things You Think
Can You Do with the Available Resources on Hand.\" The Hope Being Maybe
There Will Be Some Resources We Can Free up In Future Years.

Shumaker: I Have a Question Here From Spokane. Actually Two Questions.
Under the Penalties at 3715.8 it States in the Code of Federal
Regulations That You May Be Subject to Arrest and Trial. Now, Does this
Preclude the Issuance of a Violation Notice?

Mclane: Matt, Violation Notice In Reality Is in Lieu of Arrest. Under
the Federal Land Policy And Management Act Our Law Enforcement Officers
Have the Authority to Make Arrests. There Is Nothing in There That Says
We Have the Authority to Issue Citations. The Citation Is a Procedure
Developed by the Justice Department and the Courts in Order to
Facilitate Charging a Person for a Crime Without Having to Physically
Arrest Them.

Shumaker: Ok. So You Don\'t Have to Take Them To the Downtown ‑‑

Mclane: No.

Shumaker: No Posting Bail. They Just Promise to Appear. The Second Part
of the Question Is If a Mining Claim Is Invalid, In Other Words, If They
Didn\'t File it with BLM or Haven\'t Paid Their Fees, Do We Have to
Treat This Occupancy under the 3715 Regs or Can We Treat this as
Exceeding a 14‑day Camping Limit Or Unattended Property or 10 Days or a
Real Realty Trespass, Perhaps? It\'s Hope. Who Wants this One? Well,
Scott?

Murrellwright: I Would Probably Hit Them with a 2920 First. If They
Don\'t Have Any Type of Active Notice on File or Any Other Kind of
Documentation, If They Don\'t Have ‑‑ You\'re Saying They Don\'t Have a
Mining Claim?

Shumaker: No Mining Claim for Whatever Reason.

Murrellwright: They\'re 2920. They Have 14 Days. Trespass.

Shumaker: in That Case, Would a Civil Action Be Appropriate or Would it
Be Appropriate for the Ranger on Patrol to Come in on Monday and Say,
You Know, You\'ve Been Here Three Weeks, If You\'re Not Going by Friday,
You\'re Going to Get a Violation Notice For a over 14 Days?

Murrellwright: If You Find It, Report it to the Ranger with an Incident
Report or Whatever He Or She Requires, and They\'ll Probably Be out
Within 24 Hours And Give Them the Final Spiel.

Mclane: That\'s an Example What I Call, the New Violation, as Opposed to
the 30 Years Continued Occupancy.

Shumaker: in That Case, I Would Be Wary, Then, of a Long‑standing
Occupancy Where The Mining Claim Inadvertently Lapsed, They\'ve Lived
There for 15 Years, the Mining Claim Is Gone. Really the Effect Is No
Different. The Only Thing Different Is a Little Paper Work and I Can\'t
Imagine a Magistrate Would View That with Any Favor.

Deery: I Can\'t Disagree with That. Remember That We Do Not Want to Find
Ourselves Standing There With Black Helicopters Circling Overhead with
Blue Helmets and News Channel 8 with News Cameras Rolling Hauling People
off the Public Lands That Have No Place Else to Live. That\'s Not Going
to Play Well.

Shumaker: it Looks like We Are Just down about to the End of it Here.
Here\'s One from an Office I Think I\'ll Just Pass this One on Over to
Rick.

Deery: it Says That I Mentioned We Need to Do Inspections and We Need to
Determine That an Occupancy Is Reasonably Incident. These Are the Two
Things That We Must Do. He Says He\'s Full Time Working On Patents.
Well, Congratulations. Who Is Authorized to Determine If the Occupancy
Is Reasonably Incident? Your Boss. We Work for the Boss. So the Boss or
the Person Delegated to Speak for the Boss Is Signing this Thing. Is
That a Cop‑out? No. You as a Geologist May Be Called Upon, and Probably
Ought to Be Called Upon, to Say in Some Very Short Succinct Language on
a Piece of Paper, to Which You Ought to Affix Your Seal as a Cme, That
Is, it Is, A, Either Mining and Perfectly Legitimate, And Absolutely
Positively Belongs There, in Which Case Any Downstream Action Is a
Compliance Action, Or, You Say It Is Not Reasonably Incident, It Has
Nothing to Do with Mining For the Following Reasons, and In Many Cases
this Is Nothing More than an Affidavit, Two Pages Long. If You\'re as
Verbose as Matt Is In His Writings, Then it Will Be Two‑and‑a‑half Pages
Long. If You Write like I Do, It\'s Probably a Page. If That. And at the
Bottom of it You Say, It\'s Not Mining, and I Put My Seal and Sign It.
We Have an Affidavit That Has Matt\'s Fine Hand Running Through It.
Matt, I Suppose We Could Send The Maui Report out.

Shumaker: Probably Could.

Deery: and So If Some Folks Would like to See What That Affidavit
Approach Looks Like, Then Lotus Know and We\'ll Be Happy to Send You
One.

Shumaker: First Off, Rick, I Think I\'ll ‑‑ I\'ve Been Insulted, but
I\'ll Let it Go but The Maui Report Rick Is Referring to Is Not Actually
a Report So up as it Is an Affidavit, and Much, I Perhaps I May Shock
Linda, it Is a Very Heavily Sanitized Version of Something You Have on
File. In It\'s in an Active Case, but I Believe I Moved Tight Another
State and Renamed Everybody. And Everything.

Anderson: Ok.

Shumaker: but I Think It\'s a Good Example, and it Is, I Say, A Page and
a Half, Rick.

Deery: What Can I Say, Matt?

Shumaker: We Have One Last Question I Think We Ought to Deal with That
Came out of Medford and We\'ll Have to Close For the Day. It\'s a Nepa
Question.

Deery: Regarding Nepa, We Heard Nepa Applies to Notice Level Activities.
Yes, it Does. And Let Me Say How this Works: If You Do Nepa, You Are
Doing Nepa on the Occupancy Part of It. The Occupancy Part Is What
You\'re Examining. All the Rest of the Activity That Is Not Related to
Nepa ‑‑ Or Not Related to the Occupancy Can Proceed under 3809. We Have
Taken the Activity and We\'ve Split it into Two Tracks. When You\'re
Writing Nepa Documents, of Course, You\'re Going to Be Focused on the
Activity at Hand and the Proposed Action, Which Is to Do The Authorizing
of a ‑‑ of an Occupancy. Are You Going to ‑‑ and You Ask, Well, Do You
Also Review the Proposed Mining Activities? Well, You\'re Going to Have
to Describe the Proposed Mining Activities Because They\'re Part Of the
Existing Environment. But You Don\'t Have a Decision to Make on Those.
But You\'re Going to Do ‑‑ You\'re Going to Include Their Existence In
the Analysis.

Shumaker: Ok.

Deery: and Your Comment about Sometimes it Will Be Hard to Separate Both
Proposals, If You Keep in Mind That One Is Part of The Proposed Activity
and the Other Is Part of the Existing Environment, What\'s Going on
Around It, Then the ‑‑ it Becomes Part of Your, Quote, Cumulative
Analysis.

Shumaker: I Think That\'s about It for Today. We Have Run a Little over
Time. It\'s Time for Us to Move On. So I Think That\'s about it for The
First Day of Our Mining Claim Course. We Appreciate All of Your Calls
And Faxes. I Would like to Remind Our Downlink Sites to Have All Viewers
Sign the Attendance Roster and Fax it to the National Training Center
Immediately after Today\'s Show. We\'ll Be Back in the Morning at The
Same Time. But, Remember, Both Our Broadcast Segments Tomorrow Will Be
on Galaxy 3 Transponder 21. So Reposition Those Dishes! I Would like to
Thank All Our Panelists Who Participated in Today\'s Telecast. Linda, I
Understand That You Need to Return to Fresno this Evening.

Anderson: I\'ll Be Gone, Yeah.

Shumaker: We\'re Glad We Could Get You for the Day. I Know How Hard it
Is to Get Away from the Work You Have to Do, Especially with All Those
Well Prepared BLM Cases You Help Us with. I Would Really like to Show
Our Appreciation for All the Help You Have Given Us over Time, So,
Dennis, If You Would Hand Her Her Very Own ‑‑ Linda, That\'s Your Very
Own Copy, a Vest Pocket Copy, as it Were, of the United States
Constitution.

Anderson: We Could Use One of These in Fresno.

Shumaker: I\'m Glad to Be of Help. Be Sure to Check the Downlink
Information in Your Course Package for Tomorrow Morning\'s Tuning
Information. We\'ll See You All Then!

**Day 2 (September 18, 1997)**

Announcer: the Bureau of Land Management Satellite Network Presents Live
from the BLM National Training Center in Phoenix, Arizona, \"Mining
Claim Use and Occupancy Management,\" a Closer Look at Inspection and
Enforcement. And Now, the Host of Your Program, Matt Shumaker.

Shumaker: Hello, and Welcome to The Second Day of Our Mining Claim Use
and Occupancy Management Course. Today We\'ll Focus on Site Inspection
and Enforcement. With Us this Morning Is Linn Gum, Supervisory Geologist
from The Ridgecrest Resource Area. Good Morning, Linn.

Gum: Good Morning.

Shumaker: How Do You Find the Weather in Phoenix?

Gum: Humid.

Shumaker: We like it That Way. With Us Once Again from the Washington
Office Is Rick Deery.

Deery: Matt, Glad to Be Here.

Shumaker: Surprised to Hear It, But Happy You\'re Happy.

Deery: Kind of Reminds Me of August in Washington.

Shumaker: Sorry to Hear That Part. Before We Kick Things off this
Morning, I Would like to Remind Everyone Throughout this Course You\'ll
Be Able to Contact Us by Telephone and Fax. You Can Send Us a Fax at Any
Time. Use the Form Provided with Your Written Materials. Remember to
Print Your Question With a Dark Marker and Please Don\'t Use a Cover
Sheet. If You Don\'t Want Your Name Mentioned on the Air, Just Check The
Box on the Fax Form. Please Call Us Whenever You Like. We\'ll Put You on
the Air as Fast As We Can. Once Again, We Have a Scheduled Question and
Answer Period in Our Last Segment. We\'re Going to Begin this Morning
with Linn Gum, Who Is Going to Visit the Exciting Topics of Inspection
and Enforcement. Linn Will Cover Check Lists, Reports and How to
Communicate With Mining Claim Occupants. The Handouts for this Section
Are in Your Packet and Begin With Page G‑1, However, Overnight and this
Morning We Did Receive a Large Number of Faxed Questions and I Think
Rick Would like to Answer a Couple of Them Before We Go over to Linn.
Rick, Let\'s Take a Couple Good Faxes from the ‑‑

Deery: One of the First Questions That Comes to Us Is From Baker. It
Says the Cash Manual Seems to Have Significance in Regard to
Environmental Aspects. Could You Repeat a Brief Summary Of its Use and
Fax out an Information Sheet Describing the Availability of the
Document. We Can Get You Something out on The Availability of the
Document. We\'re Advised by Bob Sykes Here That it Is Available Through
Narsc. We Don\'t Which Part of Narsc, But it Was Put Together in
Response to the Bureau\'s Need to Manage Haz‑mat. Haz‑mat Is a Generic
Term, of Course, for Minimizing Environmental Liability. All Mining
Operators, All Business Operators, All Prudent Individuals with a
Business Entity Now Need to Be Heavily Engaged in Minimizing
Environmental Liability. This Is the Bureau\'s Version. I\'m Told That
There Is a Federal Section, a Huge Volume and I Am Told There Is a
Companion Volume That Goes with Each One of These That Lists the State
Requirements. You Should Think about Talking To the State Office and
Seeing If They Have a Copy. It\'s Also Possible That the Haz‑mat Folks
in the District Office Have a Copy Squirreled Away and Haven\'t Shown
this Thing. What Ralph Costa in Arizona Has Broken Some New Ground Here
Saying, Look, When You Begin Doing Inspections, this Is a Good Place to
Start Asking Questions of Operators Who Have An Occupancy or for That
Matter Operators Who Don\'t Have an Occupancy, Because Everybody Is Now
Held to a Standard That Says, You Need a Permit, Get a Permit, Be in
Compliance with That Permit. Once Again, We\'re Not Doing the Permitting
for Other Agencies. We Are Simply Looking to See If There Is a
Likelihood That They Should Have a Permit, and If They Don\'t Have a
Permit, to Ask Why Not, and Don\'t You Think You Ought to Go Ask or
Don\'t You Think We Ought to Go Ask Why You Ought Not Have this Permit?
Once Again, in Addition to the Cash Manual, There Is a Whole Cottage
Industry out There of Minimizing Environmental Liability. I Said
Yesterday That Particular Job Has Gone from Being Corporate Heresy to
Corporate Dogma, and It\'s Time for Us as An Agency to Begin to Leverage
That Corporate Dogma and Make it Work for Us. We Had Another Question
That Came In, Again from Baker, Says How Does 3715 Enforcement Interface
with the Realty and Occupancy Trespass Functions? Linn, Are You Going to
Talk a Little Bit about That? If You Are, I Won\'t Jump into This One in
Any Depth. Gum: I\'m Not Going to Discuss That at Depth, No.

Shumaker: I Think Scott Murrellwright Will Be Covering That to Some
Degree.

Deery: We\'ll Simply Say the Two Are Complementary and One Does Not
Preclude the Use of the Other. There\'s Another Question, this Is the
Inevitable Question, We Were Waiting for this One: We\'re Still Confused
about What Almrs Codes Are Supposed to Be Used. Frankly, So Are We.
Almrs/ioc Is Coming at Us like a 48 Train. The Director Says We Will
Make Almrs Work. The Problem for Us Is We Are Coming in with a New Case
Type Very Late in the Process and the Folks Busily Involved in Getting
Ioc out the Door Have Said, We\'ll Get Around to You When We Get Around
to the Second Release Or the First Amendment to the First Release. So
We\'re Basically All Stuck With Whatever Is out There Right Now.

Shumaker: in Response to the Question about Interfacing the Realty and
Minerals Aspects of Occupancy Trespass, I Think It\'s Important to Note,
Rick, the Bureau Has Geologists and Arc All Gists and Biologists and
Hydrologists, and All of Us Ologists Ought to Be Working Together on the
Things We Do.

Deery: We Have One Other Comment. This Is from the Baker Office. When
You Have a County That Does Not Feel They Have the Authority To Enforce
Building Codes on Federal Lands or If a State Agency Is Too Busy to
Enforce Clean Water Act Violations, Do We Accept These Situations or Do
We Become Building Inspectors And Clean Water Act Enforcers? The Simple
Short Answer Is, No, If the County Feels That They Don\'t Need to
Enforce Building Codes, That\'s Their Call. The Building Codes Are a
Product Of the Police Powers of the States, and That Is Solely up to
Them to Decide to Enforce it or Not Enforce It. Now, If There Is
Supervisory Agency Within the State That Ought to Be Aware That Somebody
Is Not Enforcing Building Codes, Because Most Building Codes Are Put
into Place by State Agencies, Then Perhaps They Should Be Notified about
It. Now, with Respect to Clean Water Act Violations, If There Is a
Pattern That Emerges That Clean Water Act Violations Are Not Being
Pursued and We See It, We\'re Not Going to Enforce the Clean Water Act
Violations, but It Probably Is Worth Your Time To Pick up the Phone and
Make a Call to the Folks at the Epa Region or the Epa State Office And
Discuss the Situation. But Before You Do That, Be Sure That Your
Management Is on Board. And We Have Another Question From the Oregon
State Office: Do You Recommend That We Also Do Statewide or Areawide Eas
as Arizona and Ridgecrest, California, Have Done? This Is Your Call. We
Hold These Examples out to You as Ways of Being Efficient, And it Worked
for Arizona, and It Worked in Linn\'s Case. If it Looks like Areawide or
Statewide Eas Will Work for You, By All Means, Think about It. We Will
Not Discourage the Use Of Consolidating a Lot of Nepa Work and Getting
the Efficiencies of That Consolidation to Work for You. It\'s Simply
Put, Your Management\'s Call, and If You Choose to Go with an Areawide
or A Statewide, We\'re Not Going to Criticize That. We Had Another
Question Here, This Came Back to the Old 3712 Regulations: as You
Recall, 3712, the Process, Was Put Together as an Interim Measure Before
We Really Had These Regulations Even Envisioned. The Choice Was to Do
Validity or Go to Court in a Nogeraa‑style Court Case. Back in the \'80s
We Were Looking For a Solution. We Came up for a Manual Section On Use
and Occupancy That Took As Our Approach That We Would Go Out and Hold an
Administrative Hearing by Challenging Somebody And Saying, We\'re Not
Challenging the Validity of Your Claim, Not Challenging the Underlying
Authorization for the Mining Law, We Are Simply Saying You\'re Not
Reasonably Incident, And We Would Then Go on to a Contest Hearing,
Giving the Person the Opportunity to Come In and Present Their Side.
With the 3715 Regulations, That Process Is More or less No Longer
Available to Us, and We Don\'t Want it to Be Available to Us. Now, the
Second Half of this Question Says: However, If We Issue a Cessation
Order for Not Being Reasonably Incident, They May Appeal, Which Means
Ibla May Refer the Case to Nalj. Not Necessarily. This Comes Back to the
Question Of the Administrative Record and The Role of the Office of
Hearings and Appeals Within the Department. Oha\'s Main Job Is to Ensure
That The Administrative Record Is Correct, Does Support the Decision
Before We Get over to a Court under the Administrative Procedure Act.
Your Worst Nightmare Is a Judge Deciding in Federal District Court He Is
Going to Hold the De Novo Review of Your Case Because You Have Just Been
Bitten Big Time by Your Own Inability to Maintain a Case File. That
Means the Judge Is Going to Open up and Hold a Hearing on Everything in
the Case File, and At a Federal District Court Level That Will Not Be a
Pleasant Experience. We Have a Possibility That the Interior Board of
Land Peels Could Be Confronted by a Case That Is Sloppily Done, That Is
Not Lucidly Laid out and the Result Could Be an Administrative Hearing
in Front Of an Alj If There Is a Dispute As to Facts. If You Do Your Job
Right, You Document, Document, Document and Document Again, until
You\'re Sick of Documentation, Then There Should Be No Dispute over
Facts in the Case. That\'s When You Go to an Administrative Law Judge
Who Is A Tryer of Fact. The Board Will Most Likely Simply Review Your
Case Based on The Administrative Record and Ask the Fundamental
Question: Are You Arbitrary and Capricious And Does the Record Support
Your Decision? If it Doesn\'t, Plan on Having The Case Come Back to You.
Let Me Also Point out to You, This Is a Regulation That Goes From the
Authorizing Officer to The Board of Land Appeals. There Is No
Intermediate Appeal To the State Director. There Is No One to Hold Your
Hand at the State Office and Say, Oh, That Was a Bad Thing to Do and
Send it Back to You to Correct It. You\'re on Your Own. So this Means
That When You Are Doing a Case and You Are Looking At It, Do it Right.
If You Have Questions, Be Sure To Talk to the Folks at the State Office,
Because it Will Not Go down Well When the State Director Determines That
He\'s Got a Case That\'s Gone Sour at The Board of Land Appeals and He
Didn\'t Have an Opportunity to Know about It.

Shumaker: Rick, I Think We Ought To Save the Rest for Our Later Session.
We Will Have a Question and Answer Session this Afternoon Where We Will
Have a Great Deal Of Time. If We Didn\'t Get to Your Fax This Morning,
We Have Them Here. We Have a Whole Lot of Them. I Promise You, We\'ll
Get to Them Today. Also If You Have Other Questions, Give Us a Call,
Send Us a Fax, and We\'ll Get to You As Quick as We Can. Anyway, Linn,
Why Don\'t You Take It Away.

Gum: Thanks, Matt. Good Morning. Welcome to this Section of Our 3715
Program. When I Was First Contacted by Matt about Being Here, He Asked
Me to Come and Talk a Little About Our Strategy in Ridgecrest In Regard
to How We Approach 3715 since the Time of the Promulgation of the Reg
and Where We Are Today. He Asked Did I in Fact Have a Strategy That Was
Written down And Kind of Turned My Wheels a Bit to See Exactly What We
Did. So What I Want to Share with You For a Little While Is Our Strategy
as We Developed this Program in Ridgecrest. The First Thing We Did Was
to Cut off Filings of the Occupancy Form as of October 16th, 1996, And
Then We Destroyed the Remaining Blank Forms. We Did That in Accordance
with The Washington Office Directive That We Wouldn\'t Have Any of These
Forms Left Back Around So That People Could Come in Later And Perhaps
Obviate a Situation That Ought Not Be. The Second Thing We Did Was Set
Up Case Files in Association With Each One of These Occupancies and Made
Them a Subset of 3809 Case Files. Now, I Might Say this Is Fairly
Important Step in That as We Review the Occupancy Filings, We Must Do it
in Association with Our 3809 Case Filings. So the Two Work Hand in Hand,
And it Was Important That We Get That Set Up. The Third Thing We Did Was
to Wait until August 18th, 1997, Basically, to Do Much Else. Rick Talked
to Us about the Fact Yesterday That We Needed to Wait Until Such Time as
We Got past The Grace Period and I Think We Did a Great Job of That,
Rick.

Deery: the Fact Do You Know How To Wait. Do You Waiting Better than Most
People I\'ve Known.

Gum: What We Also Did along That Time, If We Found Any Occupancies on
the Ground, out There, That People Had Not Filed Their Grace Period
Filing with Us, We Had to Then Take Immediate Action in Accordance With
3715. Now, We Do Have a Case That You\'ll Find in My Handouts at Pages
1‑8 Which Are Letters That We\'ve Written in Regard to a Couple of Our
Ongoing Cases and A Flowchart at Page 9 and 10 Which Will Show What the
Entire Process Is like in Our Resource Area. Probably Should Be Very
Similar For Everybody Else, as Well. We Waited until August 18th, 1997,
to Take an Action and That Is Now We\'re in the Process of Sending
Letters to All of Our 57 Filers That Says You Got to Give Us an
Occupancy Plan in Accordance with 3715‑2. In Order to Help Us Do a
Reasonable Amount of Inspection Of On‑the‑ground Activities, We In the
Ridgecrest Resource Area Formed a Partnership with Our Ranger Crew and
Get with a Designated Ranger on Any Given Case and Go to the Field with
That Person So That We Have Both Law Enforcement and the Certified
Mineral Examiner on Site at the Same Time to Conduct An Inspection of
the Site. These Folks Also Help Us Prepare Reports, Generate Case Files,
Take Photographs, Be Expert Witnesses for Us If and When the Time Comes
That We Have to Go to Court. Something That I\'m Guilty of Not Having
Done in Ridgecrest Resource Area Yet and Still Have To Do under My Own
Strategy Is To Plot All These Points on a Pin Map. I Would Recommend
That We All Do That So That You Can Take Advantage of the next Step, and
That\'s Basically to Try to Work Cases That Are in General Proximity of
One Another. Out in Southern California, Typically When We Have These
Types of Occupancies, They Tend To Congregate in General Areas, And So
If We Have an Opportunity To Go in and Work Four or Five Cases at a
Time, We like to Take Advantage of That. The We Also Stated That We
Needed to Be Timely in All Aspects of the Program. This Program Is a
Program of Infancy, and We Know the Actions That We\'re Taking at this
Point In Time Can and Will Be Appealed To the Interior Board of Land
Appeals in a Minute, and We Believe That Our Case Files Need To Be
Extremely Tight in That Regard So That We Can Prove to The Board That
These Are Workable and Usable Tools That Will Help Us Manage Occupancies
Hidden under the Mining Law on The Public Lands. In That Timeliness in
the Program, That Meant That We Basically Need to Do Make Sure That We
Didn\'t Miss Any of Our Suspense Dates for Reinspection. The 3715 Regs
Tell You If You Issue a Notice of Noncompliance That Within 30 Days You
Need to Go Back to Assure That, in Fact, The Offense Has Been Corrected.
If We Are Not Timely in Going Back and Following on in Those Inspections
and Documenting Those Inspections, Then If the Time Comes That this Is
Appealed, We\'ll Probably Lose at The Court Because We Don\'t Have A
Complete Record Showing That We Were Timely in Our Adjudication. That
Goes on to Our next Point, Thoroughly Document All Activities. We Have
Heard it Said Yesterday. We\'ve Heard it Said Already Today by Rick
Again. Document, Document, Document, Until the Point of Time You Are
Sick of Documentation. Take Photographs. Write Notes. Put Something in
the Case File Every Time You Go on Site. If You Don\'t Do That, Then
There\'s Nothing Other than Your Own Hearsay to the Judge That, In Fact,
You Have Been on Site Repetitive Times, and You May Well Win or Lose
Your Case Based Upon the Strength of Your Case File.

Shumaker: Yesterday I Mentioned That I Have Looked at Many Case Files,
Linn, That Had Photographs That Fell Out, and I Had No Concept of What
Was Going On, and I Have Seen of Your Case Files and Yours Are Very
Good.

Gum: Well, Thank You. We Want to Make Sure in Any and All of Our
Activities in this Program That We Go the Extra Mile. It Kind of Comes
down to Our Next Point in Our Strategy, and That Was to Give the Benefit
of The Doubt to the Claimant in All Regards. We Wanted to Make Sure That
We Could Demonstrate to the Court, To Anybody That Picked up the Case
File, That We Hadn\'t Been Out Being Ramboes or Overzealous Bureaucrats
Trying to Drive People off the Public Lands, but That, in Fact, If They
Made a Claim of Having Occupancy under The Mining Law, That We Would
Explore That Opportunity for Them Totally.

Shumaker: Linn, One Thing I Would like to Warn People about Is Giving
Benefit of the Doubt. That Can Be Overused and I Think Benefit of the
Doubt Should Only Be Given When There Really Is Doubt.

Gum: Point Well Taken. We Gave That Benefit of the Doubt as it Was
Supposed to Be Given. At the Same Time, We Employed The next Portion of
Our Strategy, and That\'s to Be Court Courteous. Each One of Us Expects
to Have a Degree of Respect Shown to Us as We Arrive, and I Think It\'s
Only Fair and Appropriate That We Would Extend That Same Courtesy Back
to the Clients That We\'re Dealing with on the Ground. Even If You Have
a Contentious Situation, Courtesy Will Earn You an Opportunity to Defuse
That and Probably Get a Whole Lot of Work Done in Coordination With the
Individuals You\'re Dealing With, Albeit on Times Like in the Ditto Case
That it Wasn\'t the Best of Situations, Eventually There Was
Capitulation and in a Reasonably Benign Manner. I Think Courtesy Earns
Us a Lot.

Shumaker: as an Inspector, If For Some Reason You or I Couldn\'t Get
past a Problem We Have, a Personal Problem We Have With an Occupant, I
Think it Would Be Best to Send Somebody Else in Our Place.

Gum: Yes, Indeed, If You\'re Too Close to It, If You\'re Emotionally
Attached to the Situation, If You Feel like That You\'re Engaged in a
Win‑lose Struggle, by All Means Go to Your Supervisor, Go to One of Your
Colleagues on Staff and See If You Can\'t Get Somebody Else To Come in
and Intercede and Mediate in That Behalf. It\'s a Good Plan. We Also
Talked Time and Again About Our Opportunity to Be Kind To These People.
I Think Yesterday Linda Anderson Talked about That over and over Again,
about If We\'re Going to Present One of These Cases to The Court, We
Need to Be Able to Demonstrate That We Haven\'t Been Out There Trying to
Swat Gnats With Howitzers. So Being Kind Doesn\'t Say That We Circumvent
or Obviate in Any Way the Requirements of the Regulation. It Just Says
That We Exercise a Degree of Fairness, a Degree of Firmness and a Degree
of Uniformity. Now, We Can Be Fair, Firm and Uniform in Our Application
and Still Be Kind and Courteous. We Need to Get to That Point of Time
Where When We Make a Decision That Decision Is Final And Not Continue to
Draw Lines In the Sand That We Back down Away From, Because If We Do, I
Think We\'re Just Injuring Our Case. Now, My Handouts on G‑9 and 10 Are
Flowcharts and I Will Throw Them up in Macro Scale. I Know It\'s
Difficult to See Anything on This, but If the Folks in the Audience
Would Turn To Their Manual, It\'s on Page G‑9 and G‑10. The First Chart
Is the Chart of The Flow of Work under 3715 If An Individual Had Filed
for Their Grace Period. You Will See That I Have a Client\'s Name
Related in One of The Boxes on That Page. Since this Is an Ongoing Case,
I Would Prefer Not to Name That Client by Name in this Setting. But You
Can See There Are Three Letters We Had Sent to That Letter. The First
One During the Term of The Grace Period to Remind Her That by the 18th
of August We Needed to Have a Plan of Operation, as Well as a 3715
Occupancy Plan from Her. A Second One That Went to Her, Which Is Not
Required by the Regulation, by the By, it Was a Follow‑up Letter after
We Passed That Spence Date and Didn\'t Have The Filing ‑‑ Saw Pence
Date, And Finally We Did Receive That Filing in Our Last Letter and it
Goes Back to Her Denying Her Her Occupancy Filing in That it Was
Determined to Be Casual Use Level Activity.

Shumaker: the Policy of Going The Extra Mile and Sending Reminder
Letters Can Only Do You Well, Especially When it Comes To the Pinch of
Having to Litigate.

Gum: We Believe That If this Individual Was Going to Appeal To the
Board, That That Would Only Serve Us Well as Far as Being a Strength to
Show Again That We Had Gone the Extra Mile To Give Her an Opportunity to
Come into Compliance.

Shumaker: That\'s Right.

Gum: Chart Number 2, Which Is on G‑10, Shows the Same Flow of Work, but
Only in a Circumstance Where We Caught an Individual Who Did Not File
Their Occupancy Form in Time to Receive the Grace Period. So this Is One
That We Have Been Working Through During the Term Of this Year. Now,
You\'ll Find Those Letters In the ‑‑ in Pages G‑7, 8 ‑‑ or 6, 7 and 8,
and You\'ll Find That This Individual Claimed That He Didn\'t Have
Enough Warning, Advance Notice, That He Had to Capitulate to Comply with
These New Regulations, et Cetera. So Basically We Bargained down Through
the Year and Got Him on Board by the Time the Grace Period Was over.
Something That We Can Send to You via E‑mail after the Close Of this
Class Today Is Our Final Decision Letter to the Individual, Which Again
We Did Not Concur. That\'s Not Included in Your Handouts but May Be
Worthwhile. The Reason it Would Be Worthwhile Basically Leads Us Into
the Inspection Phase of This Talk.

Shumaker: We Would Have Included It with the Handouts, Linn, If It Had
Been in Existence, but You Just Finished Writing it on Monday.

Gum: Yes, Last Week. It\'s an Ongoing Case. That\'s Why I Prefer Again
We Not Talk Specifically about What Is Happening. But You Certainly Can
See it If You Would like to Have a Copy. Well, in Inspection, Now That
We\'ve Gone Through All This, the Question Becomes: What Information
must the Applicant Provide to the Bureau of Land Management in Order to
Occupy Those Grounds? First and Foremost, 3715.3‑2 Indicates That the
Applicant Must File a Site‑specific Map Showing Placement of All
Facilities and Equipment. If, in Fact, When You Receive Your 3715
Occupancy Filing You Don\'t Have That Said Map, Your Case Basically Is
in a Situation Of Not Being Technically Complete. You Have the Option at
That Time To Identify to the Applicant Their Opportunity to Either
Provide You the Information That\'s Deficient and Then Your Time Clock
Will Start, or Preferably, to Return the Application with a List of
Deficiencies to That Applicant And Thereby Reduce the Amount of Paper
You Are Holding in Your Office. It Also Would Potentially Relieve the
Opportunity of Your Nepa Team Doing Work on Something That Isn\'t Going
to Be Approved in the near Future Anyhow Because of its Technical
Insufficiency. So You Can Save Yourself Some Time If When You Go Through
These Reviews If You Find Technical Inadequacies, Send it Back to the
Applicant. The Second Thing That\'s Required, under 3‑2, Is a Written
Description of the Proposed Occupancy That Describes in Detail How this
Operation Comports with the Rest Of the Regulations. The First Condition
Is, How it Is Reasonably Incident to Mining. Well, That\'s More or less
a Redundancy. At That Point, Which Is the next Thing These Folks must
Show in Their Filing, How They Comport With 3715.2 and 2‑1, That\'s the
Very First Thing, Being Reasonably Incident to Occupancy, Is the First
Condition under 3715.2. They must Also Show in Their Filing Where Any
and All Temporary or Permanent Structures Will Be Placed. We Need to
Know That So That We Can Compare Against Their Mining Plan of Operation,
Are These Activities That Are Reasonably Incident and Are They Included
Under That Mining Plan of Operation? They must Also Identify a Location
and Reasons for Enclosures That Will Exclude the Public, If in Fact They
Have Open Working Areas Dangerous for Public to Be In, and They Want To
Put a Fence, That Would Be Appropriate, but They Need to Get That
Approval First to Place Those Fences and Barricades and Must Provide a
Reasonable Alternative Access. Their Signing on Those Facilities must
Also Comport and Not Give an Indication That, in Fact, Trespassing or
Something Of That Nature Will Occur If Somebody Goes onto That Ground.
It Is, after All, Public Land. The next Thing They must Do Is To
Identify That Reasonable Alternative Access for Passage Of the Public,
And, Then Finally, They Need to Estimate The Period of Their Use of
Those Structures and They must Give Us A Schedule That Presents When
They Will Be Removed and When The Surface Disturbances Will Be
Reclaimed. Now, That Puts Us into the Realm Of What Happens, Really,
When We\'re Looking at Inspection? I Would Indicate to You That
Inspection Involves at Least Two Phases: the First Phase in the Office
Prior to Going onto the Ground. You Need to Pick up Your 3715 Filing and
You Need to Take a Look at If this Is Going to Be An Occupancy or a
Storage Shed Or What Are You Likely to Incur. You Need to Take a Look at
Your 3809 Mining Plan of Operation or Notice and See What the Approved
Activity on the Ground Is and Begin to Make a Bit of an Assessment as to
What You\'re Likely to See When You Get out On the Ground, What You
Should See, and Is this Activity That You Are Going to Encounter Going
To Be Sufficient in Order to Support That Occupancy. Well, That Leads Us
to the First Thing That Is Asked: Are These Activities Reasonably
Incident To Mining? How Are You Going to Make That Determination? Well,
You Can Ask Your Questions About like What Kind of Operation Is this? Is
it a Placer Operation? Is it a Milling Operation? Is it Mining? Is it
Production? Is it Exploration. I Have Put in My Handout at G‑11 A Series
of Questions That One Could Ask That Are Pertinent to What Level of
Activity May Be Taking Place on the Ground. To Give You an Idea of the
Type Of Equipment That You Should Be Seeing on Site as Well. So You
Might like to Take a Look At That. The next Thing That We Ask Is: Do
These Activities That We\'re Inspecting on the Ground, Do They
Constitute Substantially Regular Work? It\'s Pretty Interesting
Question. If You Have the Applicant That Comes in and Says, Gee, I Have
Been Doing My Necessary Amount Of Assessment Work on the Ground Because
the State Requires Me to Do That, and I Think That That\'s Substantially
Regular to Keep My Mining Claim Current and Active, How Are You Going to
Answer That Type of Question? Well, You Can Take a Look at 3715.0‑5
Wherein There Is a Description of What Constitutes Substantially Regular
Work, and That Includes Anything That Directly Benefits a Mineral
Property, the Search for and Development of Mineral Properties and
Deposits, Processing of Ores, the Assembly, Maintenance and Fabrication
of Equipment, Procurement of Supplies, Work on Physical Improvements, et
Cetera. The Key in Determining Substantially Regular Work Is, Has this
Work Led to Not Only The Discovery and as Say of Samples, but Has
Production Begun? Are They Actually Moving a Substantial Amount of Dirt
to a Mill Because They\'re Going to Recover Some Type of Value That Has
Been Discovered?

Shumaker: Linn, When You Are Looking at this Sort of Thing, And, Rick,
You Might Want to Jump in with This, You Need to Look at What Sort of a
Part of The Mine Lifecycle That this Property Is In.

Gum: Absolutely.

Shumaker: the Sort of Occupancy And Use You Would Expect from an
Operating Mine That Is Actually And in Reality Removing Anywhere From
Five Tons to 100,000 Tons a Day Is Going to Be a Whole Lot Different
than the Surface Use That You Would Expect from Somebody Who Is Just out
Collecting Samples and Assaying. We Were Collecting Samples and As
Saying All Wyoming and I Think Rick Put Me in Noncompliance a Number of
Times. That Was under Wyoming Law, but It\'s Another Issue. We Didn\'t
Build a House. We Just Had a Tent and We Would Commute into Town. So‑so
Exploration Activities Don\'t Normally Warrant a Residence.

Gum: That\'s Correct. And the Regulations Talk about That Very Fact.

Deery: the Point the Regs Make Is That If You Are Doing Exploration
Operations, the Erection of Permanent Structures On the Public Lands Is
Probably ‑‑ Is Not Acceptable Unless the Area Manager Authorizes It.
It\'s More Proper If You\'re in a Remote Location like Someplace In
Alaska to Maybe Move in a Helicopter, Mobile Man Camp, Workings, Those
Sort of Things That at the End of the Season You Could Pull out. That
Would Be Appropriate. But the Idea of Walking in and Putting down a
Three‑bedroom, Four‑level Split So You Can Do Explore Nation Is Simply
Not Part of a Normal Customary Approach to Exploration.

Shumaker: That Leads Us into a Gray Area What\'s a Permanent Building
and What\'s Not and I Don\'t Want to Go down That Rabbit Trail Very Far
Except to Say Sometimes a Large Mobile Home, Even a Single Wide, Is
Primarily Residential and We Will See What it Takes to Move One of Those
Things, That\'s Not A Temporary Building. That\'s Really Substantially a
Permanent Building, and That\'s Not Warranted, Either.

Deery: Exactly. Linn?

Gum: the next Issue That We must Deal with Is to Determine Whether or
Not These Activities Lead to the Extraction and Beneficiation of
Minerals. There Are Several Things That Could Demonstrate That in Fact
That\'s Going On. For Example, If You Notice There Is Continuous and
Ongoing Activities That You Witness Every Time You Go out There to
Inspect this Site, There\'s Probably Something That\'s Going To Show a
Logical Nexus to the Fact That the Activities Are, in Fact, Leading to
Extraction and Beneficiation of Minerals. It Could Also Be Demonstrated
by The Construction, Use, Maintenance of Infrastructure Necessary to
Support a Milling Activity as an Example. It Could Be Demonstrated by
the Movement of a Significant Amount Of Material from the Mine Site
Proper to a Mill That\'s Set up At the Site to Process That Ore.

Shumaker: Sort of like Pilot Testing?

Gum: Sort of like Pilot Sampling, I Suppose. Bulk Testing. But Real
Processing of the Ores To Develop and Beneficiate Minerals. The next
Thing That must Be Shown Is That the Activities Are Operable ‑‑ the
Activities That Are Occurring on the Ground Are Operable and Verifiable.
What Can You Do in Order to Verify Whether or Not Those Activities
Really Are Doing Anything? Well, You Can Go out and Take a Look at the
Structures and See Whether or Not, If, in Fact, the Structure Is
Supporting Any Kind Of Occupancy or Is it Being Used For Any Type of
Storage. Now, the Picture That\'s on Your Screen Right Now Is a Picture
of A Cabin That We Have out in the El Paso Mountains. It\'s the Cabin
That\'s Involved In Chart Number 2 with That Particular Client. On this
Particular Cabin We Have A Filing That Says That this Cabin Is Used for
Storage, Storage of Mining and Milling Equipment. However, There\'s Some
Things That Bee Lie That. For Example, the Picture You See On the Screen
Right Now Is a Sign That\'s Posted on the Door Warning That this Is a No
Trespassing Situation, It\'s Private Property, but Please Don\'t Destroy
Anything and Feel Free to Stay the Night. Somewhat of an Enigma. Bailing
Wire Held the Door of The Cabin Shut. Taking a Look on the Inside We Saw
That ‑‑ Again, Here Is Another Sign Posted There That Says Private
Property, Welcome! No Trespassing. When We Went Inside this Cabin, We
Found a Nice Homey Environment That Showed All Kinds of Wonderful
Reading Material, \"Do Penguins Have Knees?\" There Is a Sign on the
Wall, Welcoming People, Asking Them to Clean up When They Go, Make it
Nicer than When They Arrived. We Maintain this Is Not Verifying the Fact
That They\'re Using this Occupancy or this Structure to Store Valuable
Minerals or to Store Mining Equipment. They\'re Using the Structure for
Recreation.

Shumaker: Linn, We\'re about Five Minutes out from Our First Scheduled
Break. Don\'t Feel Necessarily Rushed. We Can Push That a Little Bit If
You Would like. What Would You like to Do?

Gum: I\'d like to Push That Just A Little Bit and I\'ll Try to Be A
Little Bit Quicker as We Go Through What I Have Remaining.

Shumaker: Just Use Smaller Words.

Gum: I\'ll Use Smaller Words. Final Thing We Have to Ask Is: Is the
Appropriate Equipment Operable and in Use? You May Come Across on a
Federal Grounds and Find One of These Occupancies Where You Have a Cat
Sitting There, and the Cat Tracks Are Blown over by Dust, And You Have
Grass That\'s Growing up Through It, and for Pity Sake, You Go, My
Goodness, This Thing Probably Hasn\'t Been Run since 1952. At Any Rate,
If You Encounter Those Types of Things on Site, Or You Find the
Dreier/washer Doesn\'t Have a Belt Hooked to The Shaker Screen or It\'s
Dry Rotted out or You Have Your Suction Dredge Rusted Through, Probably
Those Pieces of Equipment Aren\'t Going to Be the Most Efficient Pieces
of Equipment to Mine with and You Might Be a Little Suspect.

Shumaker: Generally a Suction Dredge Where You Have to Truck Water Is in
Suspect.

Gum: in Order to Satisfy the Occupancy Requirements as Well, There Are a
Few Other Things That May Need to Be Required With. Actually 3715.2‑1
States That in Order to Make That Occupancy Legitimate That You Have to
Protect Exposed, Concentrated or Otherwise Accessible Mineral Values
from Theft or Loss. Or, You Need to Be Protecting Operable and
Nontransportable Equipment and Regularly‑used Equipment from Theft or
Loss. I Think We Could All Probably Come up with Ideas and Questions To
Determine Can this Equipment, For Instance, Be Easily Taken to And from
the Site in the Bed of A Pickup Truck. If it Can, Probably Isn\'t
Nontransportable. Or, Is this Necessary in Order To Protect the Public
from Not Only Operable and Regularly‑used Equipment, and
Nontransportable, But If It\'s Left Unattended, Does it Represent a
Public Health or Safety Problem? Indeed, One of the Things That We Did
at the Second Site That I Was Just Showing You a Few Pictures Of, We
Made a Determination That Public Safety And Health Was at Risk Because
We Found an Abundant Amount of Rat Excrawment and Other Vermin
Excrawment Scattered Throughout The Cabin. In Our Area of the World That
Can Equate to Infestation of Hantavirus or Bubonic Plague. You Need to
Play That Trump Card. Another Thing That May Show That Occupancy Is
Reasonably Incident Is It\'s There in Order to Protect Surface Users
from Improvements or Other Hazards That Left Unattended May Constitute a
Public Health or Safety Issue. And, Finally, If It\'s Located in An Area
That\'s So Remote That Access to the Area Is Not Reasonable, You Can\'t
Get There For a Regularly‑scheduled Shift. Now, 3715.2‑1 (E) Also Says a
Regular Shift Is Defined as Eight Hours on the Job, and That\'s Not to
Include Transit Time to and from the Site. It\'s Reasonable to Expect If
You Have an Isolated Spot That\'s 30 Miles from the Nearest Town That It
Is Accessible by Four‑wheel Drive Road, Probably It\'s Not Reasonable to
Have an Occupancy On That Site Unless They Have an Honest, Open and
Ongoing Operation Would That Require It. Finally, We Should Explore What
It Is That We Can Do If, in Fact, We Do Not Concur with the Existing
Occupancy. The 4‑3 Regulation Says If That\'s the Case, What We Need to
Do Is Take a Look at 3715.7‑1 And under That There Is Four Different
Things We Could Do to Enforce. The First Thing Is to Order Immediate
Suspension of the Operation. We Would Only Do So If, in Fact, There Is a
Public Health and Safety Issue at Hand That If We Didn\'t Take That
Immediate Action Would, in Fact, Give Us An Additional Liability. The
Second Thing We Can Do Is to Issue a Cessation Order. This Is the
Appropriate Thing to Do If the Individual Has Failed To Comply with a
Notice of Noncompliance or an Order of the Authorized Officer. It Does
Not Involve a Public Health and Safety Issue. There\'s Nothing That
Creates an Imminent Danger in Any Fashion. Cessation Order May Be the
Way We Choose to Go. The Third Thing We Can Do to Enforce Is Issue an
Order of Noncompliance, and That Order of Noncompliance, must Be
Specific In What Regard the Individual Has Failed to Comply with the Set
of Regulations and it must Also Set out a Time Frame That Is Specific
Within Which Corrective Action must Be Taken. That Corrective Action Is
Not to Exceed a 30‑daytime Limit. Finally, the Fourth Thing We Can Do Is
Categorized under the \"Other\" Category and That Leads Back to the
Recreation and the Realty, 2900 Regs. In Fact, We Could Order the
Applicant to Achieve or Apply For a Permit to Use the Surface Under 2900
or under 8300. That\'s What We Have Available to Us Enforcementwise.
When All Else Fails, the Last Thing That We Have, of Course, Is Getting
to the Ausa and Seeking That Injunction. Now, We Do Have a Few Forms
That You Can Find in My Handouts at Pages G‑19, G‑2021, 3 and 4, Which
You Saw Briefly Yesterday When Linda Anderson Put Them Up. They\'re
Given out by Folsom, by Medford, Oregon and by the Carson City Offices,
and I Would Offer Them to You for Use as You Go to the Field. It Will Be
That Nice Prompter That Would Make Sure You Document Each Time and You
Go. If Any Other Offices out There Have Any Forms They Have Developed,
We Don\'t Have Anything That\'s Standardized. We Would Love to See What
You Have. Anything That Will Be a Useful Tool for Us as We Go to the
Field to Gather Data So We Can Make a Proper Assessment as to The
Appropriateness of the Occupancy. That\'s about What I Have.

Shumaker: We Have One Fax That Came in While You Were Talking There and
I Think It\'s Worth Dealing with Before We Go, but We\'ll Have to Make
it Quick Because We\'re a Little over Time Now. Basically, this Is from
Salt Lake City from Mike Ford. Mike, Thanks for Sending this In. In this
Case, Mike Has a Scenario with an Operator That Uses a Portable Mill
Crusher and Conveyer System, but Has an Existing Three‑story Mill
That\'s Completely Inoperable and Has Been on the Site for 20 Years.
There\'s No Residue in the Inoperable Mill. The Question Is, and Either
Rick Or Linn, You Might Want to Answer This: Can We Request That the
Inoperable Facility Be Removed?

Deery: Who Owns the Inoperable Facility?

Shumaker: Let\'s Work under the Assumption Here That the Operator That
Has the Portable Mill Also Owns ‑‑

Deery: If That\'s the Case, We\'re Perfectly Within Our Rights to Ask
the Guy to Take That Inoperable Facility down and Remove it from the
Public Lands.

Shumaker: I Agree.

Gum: I Believe We Would Have an Abundant Opportunity to Be Able To
Demonstrate That the Inoperable Equipment\'s Location On the Federal
Ground Is Neither Necessary Nor Due, And, Therefore, We Could Exercise
That Provision of 3809 to Have It Removed.

Shumaker: I Think We Ought to Break for the First Break Now. When We
Return, Scott Murrellwright, Who Is the Geologist from Folsom
California, Will Join Us, and He Will Share Some Case Studies With Us
and Explain How Resolutions Can Be Achieved by Civil and Administrative
Methods. We\'ll Be Right Back. So Don\'t Go Too Far Away!

Shumaker: Welcome Back. We Hope You Had a Chance to Get Some
Refreshments and Stretch Your Legs a Bit. We Had a Great Break Here. In
Fact, We Almost Didn\'t Come Back. The Handouts Begin with Page S‑1 In
Your Packet. Scott, Welcome Back. Remember You Met Scott Yesterday.
Scott Is a Geologist from Folsom, California, and Has Quite a Bit of
Experience Working with Mining Claim Occupancies. Hi, Scott.

Murrellwright: Hi, Matt. Thank You. Good Morning, Rick.

Shumaker: Rick? I Believe You Have Some Case Studies, Scott?

Murrellwright: Yes, I Have. I Have a Few Here That Kind of Represent
What We Have Been Going Through in the Folsom Resource Area since the
Passage ‑‑ or since October 15th, 1996, When Oxby Notification Forms
Have to Be Filed with Us. Before I Start off I Would like To Say This,
First. Why Do These 3715s Come along? Well, There Has Been a Perception
by the Public out There, They Get a Little Confused When They Walk on
Public Lands and They Come Across Signs Such as this. No Trespassing.
Danger. Second Warning. Horses and Riders Beware. This Means Don\'t Ride
Around the Damned Gate. It\'s Your Choice. What this Conveys to the
Public Here Is Is this Public Land or Private Land? That\'s Why We Have
the 3715s Today, Is to Help Us Get Back in Line and to Deal with
Occupancies out There That Are Not Legitimate Mining Operations, to Get
Things Back In Focus, and to Get Us Back in Control on the Ground. We
Can\'t Imagine the Resources Unless We Have Regulations in Place That
Allow Us to Manage Them Reasonably. So Onward. Let Me Go Through Some
Case Files Here and Kind of Give You An Idea as to What We Have Been Up
to since as of October 15th, 1996. We Received Roughly 59 Existing
Occupancy Notification Forms in The Folsom Resource Area. 23 of the
Forms Were for Mining Claims Located on Lands ‑‑ Forest Service Land.
Denver Didn\'t Discriminate When They Sent These out. They Had to Make
Sure They Were Covering Everyone out There and Didn\'t Want to Have
Anyone Fall Through the Loopholes. 20 of the 36 Notifications Were
Identified 3715 Occupancies. The Claimants Were Issued Letters That They
Were Subject To the 3715 Regulations after October 15th, 1997, Which Was
The End of Their Grace Period. The Other 16 Notifications, Best Of Our
Knowledge at That Time, Are Casual Use. Just as a Note, Which I Didn\'t
Put in the Handouts There, to My Recollection, and from Going Through
the Files, We Did Not Receive Any Notifications after October 15th. The
Notifications That We Have Received, Those That Pertained To 3809 Cases
That We Already Had on File, They Went into the 3809 Case Files, and
Those That Were Related ‑‑ Weren\'t Related To Anyone as of Yet, They
Are Still Stashed Away in Our Pack Rat Cubbyhole. We Have Not Destroyed
Them Yet. Something May Come up Later On. You Never Know. One of the
Notices of ‑‑ Occupancy Notification Forms That Came in Came from the
Dandys on the Mokelumne River. It Was Filed Timely, and on it They
Included ‑‑ Informed Us They Constructed a Storage Shed. We Checked out
Their 3809 Notice They Submitted in July of 1993, And There Was No
Notice in There At All to the Placement or Construction of a Storage
Shed On the Mining Claim. There Was Also a Termination Date on the
Notice of Operations And it Ceased in 1993. Therefore, Based on the New
Regulations That Came into Effect as of March 31st, 1997, These Folks
Needed to Have a New Notice, and Because of That, They Also Needed to
Submit a Bond under 3809.1‑9. They Were Also Informed in There They Need
to Do Supply with Us Information for Justification of That Shed under
371530 Days After, I Believe, October 15th, 1997. I Have Got Examples
for You in Your Handout There, S‑5 Through S‑10. Just to Kind of Give
You Something To, You Know, Hands on There. You Will See the Performance
Bond. We Used Sf Form 25. They Had a Notary Public and They Provided a
Certy, Is What They Did. You Will Need to Check with the Department of
Treasury to Determine Whether the Certc Is Authorized under the Federal
Government to Handle Them.

Shumaker: Don\'t Accept a Bond From Fred\'s Bond and Storm Door Company.

Murrellwright: No. We\'ve Also Received a Number of Certificates of
Deposit. They\'re Fast and Easy and We Can Return Them Easier than We
Can Some of the Others. Folsom Has about 250 Notices and Plans of
Operation on File. This Year We\'ve Conducted about 85 Inspections. Out
of Those 85 Inspections, We Have Identified 12 Claimants Who Needed to
Be Informed of the 3715 Regulations. One of Those Is Murphys up in
Tuolumne County. We Would Consider this an Administrative Action. Part
of the Case Load Are a Result of ‑‑ I Can\'t Recall the Act Itself, but
in 1993, Claimants Were Placed under a New Requirement Where They Had To
by August 31st of Each Year Either File a Small Miner\'s Exemption or in
the First Go‑around of this Regulation, They Had to Submit a Notice in
Order to Exempt Themselves from Paying a \$100 Rental Fee at That Time.
This Was a Case Related to One Of Those Where the Claimant Had Submitted
a Notice and in it They Had Identified the Use of a Cabin and Storage
Shed on Their Mining Claim. Well, We Sent Them out ‑‑ We Sent Them a
Letter, a 3715 Operation Letter, Identifying That They Needed to Comply
with The Regulations and with County Codes. After Receipt of That
Letter, The Claimants Decided, Well, Maybe this Isn\'t Something We
Really Want to Do Because We\'re ‑‑ We\'re Really Not Using this Mining
‑‑ the Cabin or Tool Shed In the Mining Claim. We Did this to Comply
with the Regulations. So What We Did Was We Drew up a Relinquishment
Form and I Apologize for the Typo in It, I Didn\'t Catch That at the
Time, But Use That as Kind of a Reference. We Will Make up These
Relinquishment Forms. There Is No Official Relinquishment Form That I Am
Aware Of. We Will Tailor These to the Situation and this Is One Approach
in Getting Rid of or Getting the 3715 Regulations off The Backs of Some
Claimants out There Who Really Don\'t Need to Be Subject to Them, and
Then We Will Deal with the Structure as We See Fit. On the Proposed
Occupancies, the Past Year We\'ve Received Roughly 17 Proposed
Occupancies. 11 of Those Are Seasonal Occupancies That Are Related to
Suction Dredging Operations on Some of the Rivers That We Manage,
Primarily the Merced Where We Had Eight Plans and Received Bonds on
Those and We Have Also Three Notices, Some on The South Fork American
River And Some of the Mokelumne River. We Also Had Three Year‑round
Operations That We Also Have Approved. None of Those Were Residential.
One of Those That Kind of Comes To Light Was Mr. Salla, and in That
Particular Situation, We Were Notified by the Adjacent Land Owner That
an Individual Out There Was Using a Dozer on BLM Land and Was
Constructing a Road. So We Went Out, the Ranger and I, and Also the
County Sheriff\'s, Went out and Inspected the Operation as to What Was
Going On. We Found it Was True, and We Issued a Notice of Noncompliance
To the Claimants for Unauthorized Road Construction, And in There We
Identified to Them That They Needed to Submit A Notice. They Needed to
Comply with the Bonding Regulations and Also 3715s If Their Operation
Was Going to Exceed the 14‑90 Rule. Well, I Included This, and the
Handouts, I Believe, Are S‑14 Through S‑18, and You\'ll Notice In There
That the Claimants Did Supply Us with a \$5,000 Bond, They Have a Cost
Estimation as To What it Would Entail Them to Bring That Piece of Ground
Back To Some Normal Condition, and Also a Registered Professional
Engineer\'s Certification of the Estimated Cost of Reclamation. We Were
Surprised That We Got One. This Was Our First One. So it Is Possible. It
Can Be Done. And We\'ll Need a Lot More of Those. Proposed Occupancies:
of the 17 Proposed Occupancies, We, for Lack of a Better Word, Denied
Three of Them. One Was for a Trespass Notice That Was Issued Already to
a Mining Claimant ‑‑ or Actually There Was No Longer a Mining Claim at
That Point in Time. And They Weren\'t Mining, and They Also Failed to
File an Occupancy Notification Form. The Other Two Were Primarily
Proposals That Lacked Enough Information in Order to Make a
Determination. So They Were Given the Opportunity to Resubmit and Also
They Were Also Informed They Needed to Have a Reclamation Bond Now, Too.
Trespass Cases in the 3715s, Well, Roughly We\'ve Got 30 Open In Orca,
and Some of These Cases Are Pending Closure and Are Getting Ready for
Cleanup. Overall, Though, in Terms of Numbers out There Regarding Mining
Claim Occupancies, If You Put Together Our Orca Statistics, the 12
Inspections This Year, and the 20 Occupancy Notification Forms That We
Have Received, We\'ve Got 60‑plus. That\'s Not to Say That\'s All. We
Probably Still Have More and More Will Be Identified as We Get out There
and We Continue With Our Mining Claim Inspections. How Are We Resolving
Some of These Trespass Cases under 2920? One of Them, We Have a Civil
Suit Right Now in Progress in Fresno with Assistant U.s. Attorney Linda
Anderson, Who Was On the Show Yesterday. Five of These Trespass Cases,
We Are Considering Land Exchanges With. Primarily These Pieces of Ground
Are for the Most Part Landlocked. The General Public Does Not Have
Access into Them Anymore. And Management Has Decided That That Is the
Approach That We Will Take.

Shumaker: Those Sound like They Are Land Manager\'s Nightmares.

Murrellwright: Pretty Much. For Our Particular Area, Folsom, Some Folks
May Not Be Aware We Have a Real Patchwork Quilt Type Land Pattern up
There. We Don\'t Have Large Bases of BLM Land Clumped Together. We Have
a Lot of 10, 20, 40‑acre Pieces That Have Through Time Surrounded by
Communities, Private Property, and That\'s Why We Are Taking the Courses
of Actions That We Are. We\'re Also Looking at Life Leases for a Number
of Them, Four, Actually, and Lastira Is An Example I Came out with. They
Are a Couple in Their 80s. They Have Been Occupying BLM for Over 30
Years. They Have Been Working a Shaft. They Have Been Working an Old
Tunnel at Their Own Admission. They\'ve Dug 40 Feet in the past 10
Years. What Are We Going to Do in a Situation like That? Well, It\'s up
to the Management, And They\'ve Decided That Given The Time That
They\'ve Been in There, We\'ve Had the County Go In, and They Have
Inspected the Area to See What ‑‑ There We Go ‑‑ That\'s Lastiri. This
Is Not Their Occupancy House at All. This Is Their Shack ‑‑ the Shed
Where the Equipment Is Where They Have Been Working on Their Hole for
the past 10 Years. They Dug 40 Feet in 10 Years. Is That Acceptable? No.
As I Was Saying, We\'ve Had the County Go out. We Had Them Check It.
They Have an Approved Septic System. They\'re Pg and E, Pacific Gas And
Electric, Hookups Are All Correct. They Are in the Process of Issuing a
Permit to Them.

Shumaker: Is it Safe in Saying The Lastiri Residence Is Not a Threat to
the Public Health, Safety or Environment?

Murrellwright: No, it Does Not.

Shumaker: That Seems to Meet the Criteria for a 2920 Lifetime Lease ‑‑

Murrellwright: That\'s What Management Was Thinking. Given the Hardships
it Would Take for Them to Move and Find Another Residency, it Wasn\'t in
The Best Interest There:so We Need to Look at These Things on A
Case‑by‑case Basis. We Can\'t Treat Everyone the Same Out There. That Is
Not the Intention of These Regulations. We Have Different Situations,
Different People. We Need to Use Some Judgment in Enforcing These
Regulations. For Lastiri I Have Also Included A Copy of a Life Lease on
S‑19 Through 23. It Is Not the Lastiri\'s Lease, Another One We Issued
Some Time Ago, to Give You an Idea of What Is Involved. There Is More
Paper Work Involved than That, but That Will Give You a Starting Run.

Shumaker: Was That Lease Format Put Together by a Solicitor, Attorney?

Murrellwright: I\'m Not Sure. Our Realty Specialist Worked on That.

Shumaker: it Looks Pretty Comprehensive, and I Think it Would Be Pretty
Worthwhile for People to Look at it and Adopt It. I Would like to Know
How Legally Airtight it Would Be.

Murrellwright: I\'m Not Sure. They Should Probably Contact Marianne
Wetzel, and He Is the Realty Specialist.

Shumaker: with Marianne Handling It, I Have Every Confidence it Would Be
Handled Well. She Does Good Work.

Murrellwright: Excellent. Onward, We Go. Next We Move onto Cessation
Orders. This Year We Have Issued One Cessation Order, and this Went To a
Mining Claimant Who Is Also An Adjacent Land Owner, and the Claimant
Decided to Appeal 90 Days after Receipt, and the Area Manager Denied the
Appeal. If this Appeal Had Been Filed Timely, Just a Note Here, this
Case File Then Would Have Been Sent to the State Office for Routing. So
They Still Do Have Place in The ‑‑ in the Appeal Process. They Are Not
Shortcutted. That Is Their Function Now Today, If I\'m Correct. Is That
Right, Rick?

Deery: It\'s Going to Vary by Whichever Process the State Director Wants
to Send Things to The Board of Land Appeals. There Is a Requirement, and
I Believe It\'s 10 Days. There Is a Time Limit That You Have to Have
Your Case File up To the Board. I Am Not Too Sure How That\'s Working
out. I Am Certain That Each State Office Has Decided How They Want Their
Records Handled. When I Said That the State Director Is Not There to
Hold Your Hand, Unlike 3809 Where There Is this Intermediate Step At the
State Office to Decide That this Is a Good Decision or A Bad Decision,
the State Director Is Simply Getting the Paper, Putting a ‑‑ Maybe
Flipping Through It, or His Staff, and Then Sending it off To the Board
of Land Appeals. There\'s No Quality Control Measure There at That
Level. The Quality Control from the State Office Has to Come Before You
Make the Decision. The State Offices Have to Be out There Providing
Guidance to the Field Offices. That\'s a Point That We Want to Stress
Here, Is That That Kind Of Downward Supervision, Downward Handholding,
Downward Quality Control Has to Come out Of Those State Offices. You\'re
Not Going to Get an Opportunity to Get it ‑‑ to Second‑guess Somebody
When it Comes up to You. You Need to Be out There If You Are a State
Office Program Leader Asking Questions, Saying How to Do It, and Pushing
People In a Certain Direction to Try And Get Things Done. In a Fashion
That Makes it Relatively Bulletproof.

Shumaker: in Other Words, Rick, People Need to Do it Right the First
Time?

Deery: Please.

Shumaker: with a Flattened Organization, You\'ve Got the Tools That the
‑‑ at the Local Office Levels to Do it Right the First Time and You
Should. We Have a Quick Question for Scott. What Does Road Construction
Have To Do with Occupancy under 3715?

Murrellwright: Well, Road Construction Is Just the Beginning of What
Could Be Happening down the Road. We Don\'t Know What\'s Going On. If We
Get a Phone Call or We Go Out and Inspect a Piece of Ground and We Find
a Road Is Being Constructed, We Have No Idea at That Point in Time What
Activities Are Going to Be Taking Place or What Their Intentions Are. In
the past I Can Think of One Road That Was Cut into BLM Land And it
Turned out to Be That They Were Intending to Move in Two Mobile Homes,
Again, Without Notifying BLM under 3809 or 3715. So the Road, to Me, Is
an Indication That We Possibly Have Problems down the Road. But, Then
Again, We Also Need to Inform That 3715s Are Now in Effect, and If You
Are Building A Road, it Doesn\'t Look to Me Like It\'s Going to Be to Be
for A 14‑90 Day Occupancy.

Shumaker: We Have a Phone Call From Portland I Would like to Take Now.
Hello, Marianne, You\'re on the Air.

Marianne: Well, Thank You. I Feel I must Comment on the Suspension Order
Which You Just Discussed Here on the Show. The Reason That I Feel I must
Comment Is That this Is Actually A Decision, and in the
Oregon/washington State Office We Are Issuing No Decisions That Are in
this Form, Which Is Essentially a List of the Violations, Without Having
a Statement of the Facts Which Give Rise to It. So in Our State Office,
We Would Issue this Decision by Setting Forth First the Facts as They
Have Been Found on the Ground And Documented in the Case File Which
Becomes the Administrative Record. We Would Also, Then, Issue ‑‑ Have
Included in the Decision a Statement Such as This, but We Would Show How
Each One of These Legal Elements Was Related to The Facts Which We Have
Previously Set Forth, and Then We Would Clearly State the Appeal Rights.
So I Don\'t Know What Other Solicitor Offices Are Advising The Bureau in
Their Area of Jurisdiction, but I Did Want People to Know That If We
Reviewed this Decision Before it Was Sent Out, We Would Not Approve It.
In Fact, I Think When it Gets to Ibla, Unless ‑‑ the Saving Grace At
Ibla Is the Case File, and If At Ibla They Can Take the Case File and
Show the Connection Between the Underlying Facts for Each of These
Elements of the Decision, it May Be Ok, but to Do ‑‑ to Issue a Decision
Without Setting Forth Those Facts, We Just Wouldn\'t Approve.

Deery: That\'s a Very Good Point, Marianne. One of the Things That We
Have Gotten Very Weak on Is We Have Lost Personnel over the Years Is
Adjudicative Ability. The Land Law Examiner Who Used To Be with Us in
Many Cases Retired and Those Were the Folks Who Knew How to Write These
Kinds of Decisions, and One of The Things We Ought to Be Doing Is
Relearning How to Write Decision Letters. The Adjudicators Use a Term
Called Irac, Issue, Recapitulation, Application and Conclusion. It\'s
Worth Setting down with Some of Your Experience Land Law Examiners and
Saying How Do You Write a Decision? How Do You Write One of These
Letters? And Also Sit down with the Solicitor\'s Office, Because
They\'re Also the People Who Are Going to Defend Us When We Go to The
Board of Land Appeals, and That\'s a Very Important Point That We
Stressed Before in this Case ‑‑ in this Course: Talk to The Other Guys
Involved. Talk to the Other Ologists That We Have out Here. Marianne,
Will You Please Identify Yourself for Purposes Of the Rest of the
Audience?

Marianne: My Name Is Marianne King And I Am an Attorney with the Office
of the Regional Solicitor In Portland, Oregon.

Deery: Thank You for Calling In, Marianne.

Marianne: I Have Another Comment. Part of the Strategy We Have Evolved
in the Oregon/washington State Office Is to Have a Training Session for
All of Those Specialists Who Will Be Involved in Enforcement of These
Occupancy Regulations Where We\'re Going to Get Them All Together and
Have an Experienced Decision Writer Instruct on the Elements of a
Decision. We\'re Also Going to Go over with All of Them ‑‑ I Mean, the
People on the Ground ‑‑ the Importance of the Administrative Record as
Noted in the Case File. I Think this Is a Reasonable First Step to
Enforcement under These Regulations, Because Otherwise Things Are Just
Going To Bog down at Ibla More than They Are.

Deery: and We Absolutely Agree With That Approach. We Think It\'s
Absolutely Proper. Again, One of the Things That We Have Lost a Lot of
Through Flattening of the Organization And Downsizing Is this Skill That
Was 20 Years Ago ‑‑ You Didn\'t Even Have to Think about It. You Knew it
Was There. You Had the Backup. Today, We Have to Go Back to Our
Adjudicators and Either Train New Ones and Bring Them up to The Prior
Existing Levels, and That Means We Have to Support Them, They Have to
Support Us. Can\'t Stress Too Strongly, the Job Is Not Done until the
Paper Work Is Done Right. Matt?

Shumaker: Great. Anything Else, Marianne?

Marianne: No, Not at the Moment.

Shumaker: Thanks Very Much for Giving Us a Call. Ok, Scott, Pick it Up.

Murrellwright: Back to That Cessation Order That I Was Just Talking
about Where the Appeal Was Denied, That Was Based on an Diligent
Agreement, for Lack of A Better Word, That Was Signed By the Mining
Claimant and the Area Manager. The Agreement That the Mining Claimant
Worked out with the Area Manager Was to Work the Mining Claim on an
Average of One Week per Month for the next Six Months, Move 50 Yards of
Material, and from an 18 Inch Width Seem Have an Assay of at Least 0.5
Ounces of Gold per Ton. If the Conditions Were Not Met By 5/15/95, the
Cabin Was to Be Removed. The Claimant Did Not Comply with The Condition
That He Had Signed. So That Was One of the Reasons For Issuing That
Cessation Order. There Is More to the Case than That. But the Point Here
Is, If We\'ve Got Situations out There Where, Again, These Are Not
Situations That Are a Threat to the Health And Safety of the Environment
or To the Public, If We Have a Question, If the Individual Wants to
Proceed and Show That They Are Diligent, It\'s Not a Bad Idea to Sit
down and Work Something Out, Come up with a Plan, Come up with What
They\'re Going to Be Doing over X Amount Of Time and See If They Can
Stick to It. If They Fail, It\'s More Documentation for Us in Our Cases.
Moving On, We Have Issued Five Immediate Suspension Orders, and One Is
to Casey. Round, Round, Get Around, I Get Around. Casey Has Been a
Long‑time Occupant in Our Area. He\'s Been with Us and Others on His
Mining Claim for a Good Eight Years. In the Beginning, the Operation
Looked Promising. They Had a Lode Claim, and They Kept a Clean Camp. But
about a Year and a Half down The Road, Operations Ceased, the Attic
Collapsed, and the Ore Cart and Tracks Were Moved up to The Occupancy
Site, and the Operation Now Was Justified ‑‑ Or the Occupancy Was
Justified Now by Having a Suction Dredging Operation in the Creek. BLM
Went in and Inspected, Myself and the Ranger along with County Health
and Building Codes. On the Site BLM Was Cited Because We Are the Land
Owner by The County and a Copy Was Given To the Claimant. As a Result of
That, the Claimant Moved off the Land, Cleaned it up and Moved to
Another Mining Claim, about Half A Mile Away, Constructed a New House,
and Put up More Signs to Help Keep the Public out of the Area.

Shumaker: Is That the Origin of Round, Round, Guess Around?

Murrellwright: That\'s Round, Round, Get Around, I Get Around. Back to
Every Picture Tells a Story, Documentation, Again. Photographs Speak
More Sometimes Than the Words That We Write or Don\'t Write, You Know.
So It\'s a Good Indication ‑‑ It\'s a Good Record as to What\'s Happened
or Not Happened Over, Say, a Six‑year Period at a Given Location, You
Know. So There Was No Mining. Junk. An Inoperable Vehicles ‑‑ and
Inoperable Vehicles. That\'s How the Occupancy Continued on There, as I
Said. Unfortunately, for Casey, We Issued Him ‑‑ or Not Unfortunately ‑‑
Fortunately for Us, We Issued Casey an Order and Again He Moved over to
Private Property. Because of This, We Received ‑‑ I Should Say Mike
Dombeck Received a Congressional Inquiry By a Co‑claimant Who Was
Unhappy With What Was Taking Place. So Be Ready. Have Your Facts
Together. Don\'t Panic. It\'s a Congressional Inquiry. Give Them the
Facts of the Case As to What Happened. Carry On.

Shumaker: Don\'t Be Afraid to Take Some Heat, in Other Words. If Your
Documentation Is Good, You\'ll Survive the Heat.

Deery: Another Point to Make, This Guy Is Simply Leap Frogging From
Place to Place. But One of the Other People You Need to Keep Involved in
Your Loop in Addition to Your Immediate Management, You Also Need to
Keep in the Loop the Local Either District or State Office Folks Who Are
Responsible For Congressional Affairs and For Public Affairs, Because
Eventually They\'re Going to Get A Phone Call and They Are Not Going to
like Being Blindsided, And It\'s Not Going to Help Them If They\'re
Blindsided, So It\'s Often a Good Thing to Put Together a Small, Short
Briefing Document That\'s Succinct and Gives the Details of this
Particular Case and Gives Somebody Who Gets a Cold Call Something They
Can Turn to and Say, Oh, Yeah, That Particular Case, Well, Let Me Go
over That With You, and the Bottom of It, Give Somebody a Contact.

Murrellwright: Generally How These Work, We Get Phone Calls Ahead of
Time Before the Paper Work Comes Through. It Usually Hits the Area
Manager First. He Has Already Been Apprised as To What\'s Going on and
Discussions Have Taken Place Before the Paper Work Makes it To Our Desk.
So There Is Communication. It Is Important to Do That, Yes, Very Much
So. The Downside for Us, Though, in This Case Is the Cost of Cleanup. As
it Turns Out, We\'ve Got Roughly a \$5,000 Tab Here. That\'s What It\'s
Costing Us to Clean up this Site. The Final Figures Aren\'t in Yet, But
Through Contracts and Removal of Cars ‑‑ it Is a Remote Area ‑‑ this Is
Why We Need Bonding. This Is Why We Have Bonding Today.

Shumaker: Hold That Thought for A Minute, Scott. Remember Yesterday We
Had a Faxed Question That Came in from A Field Office Saying That They
Couldn\'t Get the United States Attorney to Take a Case Where The
Damages Were under \$5,000, But this Case You\'re Describing Here Is a
Small Case.

Murrellwright: Yes.

Shumaker: It\'s Not a Big One, And You\'re at \$5,000. But You Did the
Homework to Find Out How Much it Was Going to Cost You to Do It.

Murrellwright: it Wasn\'t So Much Homework, it Was a Matter of Getting
out There and Spending The Money to Get it Done.

Shumaker: but at Least You Have The Documentation That Shows You How
Much the Cost Was.

Deery: We Have More like this. In the Process of Gathering That Data,
Did You Keep Track of Time, Time in the Office That Was Spent?

Murrellwright: Well, Unfortunately That\'s Probably One Thing That We
Are Not Very Good At, Is Tracking Our Own Time in a Case. We Can Go
Back, We Can Backtrack And Guesstimate, but You\'re Right, to Do this
Correctly, If We\'re Going to Pursue Damages, Which We Did Indicate in
the Suspension Order, That They Would Be Liable for the Costs That We Do
Incur in This, Yes. It Would Be Wise to Document.

Shumaker: Great.

Murrellwright: Just Another Note On This, the Biggest Abuses That We Get
out There Are from Notice‑level Type Operations, Not from Plans of
Operations. Onward. Another Suspension Order That We Issued this Year
Went to a Mr. Downs, and Mr. Downs Submitted a Notice to Us 1997, And it
Was Returned to Him Because of a Pending Trespass Action That We Had
Initiated in December of 1996. He Initiated Occupancy under 3809
Submitted in 1993. This Is the Front of or the Entrance into Public
Lands, and If I Was the General Public Driving By, Seeing a Mailbox and
A Locked Gate, I Think I Would Be Somewhat Confused. But Given the Area
and the Times Back Then, That Was Something That Was Not Necessarily
Tolerated, but it Was Put up With at That Particular Point in Time. As
You Can See, in Order for Us To Gain Access into this Particular Piece,
We Have to Use Bolt Cutters to Cut the Chain. But One Saving Grace at
That Point in Time Is That Mr. Downs Was Working the Claim. He Was Using
Portable Equipment, Sluice Box, Pans, Shovels, and For about a Year of
Tracking, He Was Diligently Working His Claim. Occupancy Was Reasonably
Incident and Was in Compliance With County Codes. He Had Obtained
Authorization From Us. He Took it to the County. And the County Gave Him
a Permit For a Portable Toilet.

Shumaker: Was this the Fellow Whose Idea of the Portable Toilet Was the
Folding Camp Stool with a Bag?

Murrellwright: That\'s Correct. Matt Mat the County Changed His Mind for
Him?

Murrellwright: Yes, the Sheriffs Went in and Inspected on a Drive‑by and
Contacted the County Health Department and Informed Them That Plastic
Bags Are Not Acceptable Containers For Containment of Stuff. Anyhow, I
Need to Kind of ‑‑ So He Was out There. He Was in Compliance in the
Beginning, but as Things and Times Progressed, His Claim Lapsed. He
Failed to Sme or Pay the Maintenance Fee, I Believe, in 1994, and So We
Kind of Gave Him A Little Bit of Grace Period There to See What Was
Going to Happen.

Shumaker: Failed to File Sme?

Murrellwright: Small Miners Exemption.

Shumaker: Alphabet Soup for Those Folks out There.

Murrellwright: Anyhow, in 1996, We Conducted 12 Inspections. No One Was
Present. There Was Negligible Mining Activity If Any, and the Ranger
Found out That the Individuals Had Obtained Full‑time Jobs at a Local
Body Shop. Their County Permit Had Also Expired, and They Had Failed to
Meet the Stipulations of the Maintenance Contract. So During Those
Inspections, of Course, We Still Have Got the Portable Toilet on Site,
this Was Some Diggings out There. The Only Diggings That I Could Really
Find. And We\'ve Got a Hole over Here, A Sluice Box, Some Five‑gallon
Buckets, the Back One Full of Beer Cans, One Has Plastic Bags In It. We
Have Some ‑‑ a Digging Hole Right There. And the Materials, as Far as I
Could See, Was Being Used for Growing Stuff. Don\'t Know What That Stuff
Is, But it Was Ok Stuff. I Will Put it That Way. So Because Mr. Downs
Did Not Have a Mining Claim, We Issued a Trespass Notice Back in 1996.
He Heard That We Were Trying to Chase Him down. So He Filed a New Claim.
At That Point in Time, We Ordered a 3715 Suspension Order, And as it
Turned Out, Mr. Downs Vacated the Claim in a Timely Manner, and the Area
Was Cleaned Up. In Fact, Matt and I Visited That Area, That\'s the Shot
of it Now Coming Up. I Believe it Was in June, Roughly, 23rd or 24th of
\'97, Just a Few Months Ago. But, Unfortunately, Mr. Downs Is Not the
Only Mining Claimant Who Has Staked a Claim on That Particular Spot, and
Shortly Thereafter We Have the Senior Claimant, Mr. Whitlock, Who Has
Take ‑‑ Whitlock Taking up Residency on the Same Piece of Ground. He
Exceeded the 14‑90 Rule in August of 1997. I Sent a Letter to Him
Informing Him of the 3715s and That He Is Not Authorized under the 14‑90
Rule or There Are 3715s or 3809s To Occupy. And He Vacated the Site.

Shumaker: Matt What Was Explain What the 14‑90 Is Briefly.

Murrellwright: I Kind of Short Identify Up, but I Believe That\'s under
3715.2‑2. 14‑90 Day Rule, Meaning That a Mining Claimant Can Go out
There And Occupy Their Mining Claim, Work on Their Mining Claim for 14
Days in a 90‑day Period Within a 25‑mile Radius of Their Occupancy Site
Without Obtaining Written Authorization from the BLM.

Shumaker: Basically the Camping Limit?

Murrellwright: Basically the Camping Limit Which the General Public Is
Subject to Also. Anyhow, Mr. Downs Decided That He Would Go out and Set
up Residency on the Mining Claim. He Was Visited by the Rangers ‑‑

Shumaker: Is this Downs or Whitlock?

Murrellwright: Sorry. Same Place. Shames Change. Faces Change.

Shumaker: Can\'t Keep Track of Who Is out There Without a Program.

Murrellwright: That\'s Why You Need to Keep Documentation. Mr. Whitlock
During That Time From December, after He Moved Out, He Informed the
Folsom BLM He Had Had Back Surgery in the Last Year, He Was on
Disability, And Could Not Work. The Authorized Officer He Was Informed
Would Not Be Able to Concur with Any Occupancy Exceeding the 14‑90 Rule.
Given His Conditions and All. Mr. Whitlock Informed the BLM Ranger
During August When We Found Him out There That He Was Moving onto the
Mining Claim Because He Had Lost His Home and That He Had a Bad Back and
That He Was on Disability, Couldn\'t Work, I Need a Place to Live. This
Is a Photograph of the Site, Again, That Was Clean up To Roughly a Month
Prior to this Shot. Mr. Downs Has Moved In. He\'s Got His Truck There. I
Was with Ranger Chuck Purcell At the Time of the Inspection. Again, as
Stated Before, Having A Ranger along Is a Good Thing. Mr. Whitlock Had
Three Dogs, One A Puppy That Was No Problem, but He Had Two Full‑grown
Rottweilers That Started Moving Towards Us with Threatening Gestures and
Growling and Had to Be Pepper Sprayed. So, Again, You Need to Be Ready
For Anything and Everything out There. Stuff That Mr. When it Lock Was
Moving in That Had Exceeded the 14‑90 Rule, You Can See He Has a
Trailer. Ranger Purcell Is Looking over The Equipment There. We Have Got
a Wheelbarrow. We Have Nails. We\'ve Got ‑‑ the Only Mining Equipment
That We Could See on Location at this Particular Area Was a Two‑inch
Dredge Dismantled In the Back of the Trailer, Portable. His Occupancy
Site Leaves Little To Be Desired. Mattress on the Ground. He Also Was
Living There with His Son. And His Sanitation Facilities, Again, Were
Not in Compliance With County Codes. We Are Back to a Five‑gallon Bucket
and Plastic Cans, or Plastic Bags, Which Is Not in Compliance with
County Codes. So What We Did on That Particular Day, since He Had
Already Been Given a Warning by The Ranger over 14 Days Prior, We Posted
‑‑ I Should Say the Ranger Posted the Vehicle with a Notice to Remove,
and upon Arrival Back at the Office, We Issued a 3715 Suspension Order
Based on the Fact There Was No Mining, No BLM Authorization and That He
Was in Noncompliance With County Codes. Mr. Whitlock, by the Time I Get
Back to the Office, I Believe Is To Be Removed from or Should Have
Vacated the Site. So\... I Guess in Summary, What Have We Got Going on
That We Have to Deal with More out There Now? Our Job Hasn\'t Goten Any
Easier. For the Most of Us, We Are Wearing More than One Hat. I\'m
Involved in Land Exchanges, Patents and Surface Management. Now with the
3809.1‑9, the Bonding Requirement, Even Though It Is Additional Work, it
Is Something That We Need, and We Need to Take the Time and Do it Right.
In Dealing with These Structures And the Situations That We Have Out
There, When You Get a Relinquishment of Structure to The U.s., Do So
When Appropriate. And We Don\'t Kick off Widows and Orphans. If a
Problem with an Existing ‑‑ With Existing Occupancies, Determine with a
Claimant What a Reasonable Operation Would Be to Support Their
Occupancy. In Other Words, If It\'s Appropriate Work‑up Reasonably
Incident or Diligent Contract, Or an Agreement Between the BLM And the
Claimant and See If You Can Get Tight Work. We Need to Be Reasonable. ‑‑
Get it to Work. We Need to Be Reasonable. If It\'s Not in Writing, it
Didn\'t Happen. Develop Contacts with County Code Enforcers. We Need
Them. I Understand That Here in Arizona County Codes Are Not Enforced by
the County, or They Say the County Codes Don\'t Apply To BLM Land. I\'m
Not Too Sure Which Offhand. The Point Is, in Every Location, In Every
State, It\'s Different. So You Need to Explore What\'s Going to Work for
You. And Also Be Willing to Take the Heat out There. Do Your Homework.
Make Sure You Have Things Documented. And Have Fun.

Shumaker: Sounds Good. Scott, We Had a Quick Question That Came in on
Fax. Actually, It\'s a Long Question And We\'re about Two Minutes out
From the Break Now, So We\'ll Need a Real Fast Answer. This Is from
Byard in Phoenix And It\'s Appeal after 90 Days. You Said That the
Manager Denied The Appeal. He Agrees the Appeal Period Passed but Does
the Manager Have The Authority to Deny? Did You Make an Error When You
Said That?

Murrellwright: I Don\'t Think I Made an Area. Maybe I Don\'t Understand
the Regulations, but it Was My Understanding That the Area Manager Now
Had the Approval or Had the Authority to Deny an Appeal If it Was Tardy,
If it Was Not Filed in a Timely Manner. I Think We Washington to Clarify
And That Set Me Straight If I\'m Wrong.

Deery: I Don\'t Think They\'ve Done Anything Wrong. Something Coming in
after the Appeal Period Closes Carries No Weight. End of Discussion. I
Will Have to Ask Some of the Adjudicators out There If Any of Them Are
Familiar If We\'d Have To Send this to the Board to Have Some Kind of
Blessing on It. I Would Hope We Don\'t Take the Board\'s Time up with
this. They\'re Getting a Little Irritated with Us Because We\'ve Got a
Lot of Stuff Coming into Them, and Their Backlog Is Pretty Long Right
Now.

Shumaker: I Suppose We Could Appeal the Appeal ‑‑ We Could Appeal the
Denial of the Appeal To the Board but That\'s Getting A Little Silly.
Perhaps Is Marianne King Is Still Watching, She Could Set Us Straight
after the Break. At this Point, I Think It\'s Time For Us to Take
Another Break. When We Come Back, BLM Supervisory Ranger Mike Meyer From
Palm Springs Will Share Some Recent and Really Exciting Case Studies
with Us and Talk About Ways to Achieve Resolution Under Criminal
Provisions. We\'ll See You in a Few Minutes, So Don\'t Go Away!

Shumaker: Hello Again, and Welcome Back to Our Mining Claim Course. Mike
Meyer, Supervisory Ranger From Palm Springs Has Returned. I Would like
to Thank the Special Agent in Charge in the California State Office for
Helping Us Get Mike down Here. We Really Do Appreciate It. Mike, Welcome
Back to the Program.

Meyer: Nice to Be Here.

Shumaker: Also to Give Us the Headquarters Law Enforcement Perspective
Is Dennis Mclane. Hi Again, Dennis.

Mclane: Good Morning, Matt.

Shumaker: Still Morning in Arizona. Mike, I Understand You Have Some
On‑the‑ground Examples You Would Like to Share with Us That Demonstrate
Resolutions Through Criminal Provisions.

Meyer: Yes. What I Want to Cover Today Are Two Recent Occupancy Trespass
Cases That We Had in the Palm Springs South Coast Resource Area. Both
Cases Went Through Administrative Process but There Was No Resolution.
The Claimants Continued to Live On the Claim after Ibla Decision Said
They Couldn\'t. These Cases Then Brought into Health and Safety and
Nuisance Considerations That We Had to Respond To. The First Case I Want
to Cover Is the Douglas Ditto Case. Mr. Ditto Started out with a Simple
Mining Claim That He Acquired Through Quitclaim Deed. He Then Did Some
Basic Work on The Claim and Then Brought on a Trailer That Was Supposed
to Be Used Just to Take Care of Mining Equipment and Other Incidentals.
As Mr. Ditto\'s Life Changed, More and More Equipment Arrived On the
Site. There Was less and less Work Done at this Time. Eventually Mr.
Ditto Started Living on the Claim Itself. As You Can See, There Is
Various And Sundry Items That Were Brought on That Had No Relationship
Whatsoever to Mining. He Did Do Some Work. Here Is a Picture of a Small
Add It That Was Already There Prior To the Occupancy. He Did Do Some
Pick and Shovel Work, but That\'s the Extent of It. No Heavy Equipment
Work Outside Of the Fact That He Did Bring Heavy Equipment onto the Site
to Level out the Pad, to Bring the Trailer In. A Noncompliance Order Was
Given At That Time. He Had No Plan of Operation or No Notice of
Operation at All. Along with Bringing on All His Equipment, He Set up
Gates Which Denied Public Access to the Land That Was There. This Area
Is Surrounded by Residential Areas. We Have Houses into the Area Within
about 100 Feet of the Claim Here. We Received Numerous Complaints On the
Area. We Had Fire Considerations. He Was Using a Charcoal Burner One Day
to Cook Dinner. Had a Fire in the Area. We Also Had Health
Considerations and Everything With His Septic System.

Mclane: Mike, it Sounds like From Your First Contact with Him The
Nuisance Factor Just Started To Build, One Thing after Another.

Meyer: That\'s Exactly What Happened. It Just Grew and Grew and Grew To
a Place Where Once We Had the Ibla Decision, We Had No Choice But ‑‑ and
He Did Not Comply With it ‑‑ We Had No Choice but To Go Forward with a
Criminal Action at this Time. So What I Did Immediately after The Ibla
Decision Came Down, I Went Ahead and Went Back out to The Claim and Gave
Mr. Ditto a Copy of the Decision and Had an Understanding That He Knew
What Was in It. I Gave Him 30 Days to Leave the Claim. I Gave this to
Him in Writing Also. He Said He Understood, but He Didn\'t Know What He
Was Going to Do about It. He Didn\'t Have Anyplace to Go. I Then
Returned Five Days Later, Five ‑‑ I Have to Get this Straight. I
Returned on the 25th Day, Five Days Before the End of the 30‑day Limit,
and Restated That He Would Have to Be off the Claim. He Again Said He
Had No Other Alternative, and I Said I Would Be Back. At this Time We
Waited More than Five Days Because I Didn\'t Want To Arrive on Scene on
the 30th Day Because I Didn\'t Know What Would Be Waiting for Me on That
Day, and I Wanted to Have a Certain Element of Surprise There. During
the 30 Days That I Had Between My First Notification And the Date That
He Was Supposed to Be off the Claim, I Went and Worked out a Logistics
Program to Move Him Completely Off the Claim. We Had the Deal Where We
Were Going to Issue the Citation for Trespass and Then We Had the Means
That We Had to Get Him off The Claim. We Had to Remove All the Items
That Were on the Claim, and We Had to Take Responsibility. We Had to
Give the Safekeeping. So What I Went Ahead and Did Is Notified the Local
Sheriff So He Was Aware What Was Happening. We Also Wanted to Check If
There Were Any Prior Contacts Mr. Ditto Might Have Had with The
Sheriff\'s Office and Everything. We Contacted the Bomb Squad and
Haz‑mat People, Had Them Standing by So They Were Aware Of What Was
Going On. I Requested That We Have a County Health Official on Site
Because I Wanted to Be Sure That If There Were Any Health Issues Due to
the Lack of Sanitation at The Site That Any Workers Who Were There,
Anything, Would Be Protected, and We Knew What We Were Dealing with.
Also Got Ahold of Animal Control. We Always Have Miscellaneous Animals.
You\'ll See Some Pictures Later O There Is Always Dogs, Cats and
Everything Else, and Mr. Ditto Probably Had about 20 Various Animals on
Site. Got Ahold of Protective Services During My Contacts with Mr.
Ditto. The Site Had Grown from Just His Own Occupancy to Approximately
10 People with Two Small Children. I Wanted to Be Prepared to Handle the
Juvenile Problem That We Might Have. And One of the Big Things I Worked
out Was Getting a Setup For the Move ‑‑ Removal of the Structure, the
Trailer, and Also The Miscellaneous Sheds That Were There and
Everything. I Contacted a Local Trailer Removal Operator Who Had Been
Looking to Do Exactly the Same Thing, it Turned Out, That Mr. Ditto
Wanted. He Wanted to Go Across the Road And Cut a Site and Put One of
His Trailers On. I Informed Him That Wasn\'t What We Were in the
Business of Doing On Public Lands and I Kind of Built up a Relationship
with Him, and He Agreed, for a Fee, Of Course, to Remove the Trailer.
Also, We Had the Problem with What We Were Going to Do with The Items
That Were on the Site. We Were Impounding These Items. This Was
Incidental to the Trespass Citation That Was Give Him. So We Had a
Responsibility to Secure the Trailer, to Secure All the Miscellaneous
Things Around the Trailer, the Cars, The Whole Bit. So What I Worked out
Was to Get A Storage Area That Was Secure. We Had a Fence Around It. We
Had Dogs That Were Released Inside the Area at Night. And it Was Locked
at All Times. There Was a Caretaker on Site. So We Had a Secure Area to
Bring This Property To. Because We Are Responsible for It. The next
Thing Was How to Do It, And What I Came up with Was Getting 40‑yard
Dumpster ‑‑ Dumpster Trash Bins to Be Brought on Site and We Had Two Of
Them. One Was for Actual What Was Determined to Be Trash. We Also Had a
Small Dump Truck To Move Smaller Items to the Dump Itself, Which Was
Close By, And We Had Another 40‑yard Dumpster Which We Had Designated As
a Property Container, and Anything That Ditto Said That Was His Property
That He Wanted To Maintain, We Put into There. The Idea Being That this
Would Be Stored and He Could Come and Get this ‑‑ Get Whatever He Needed
out of There at Any Time As Long as it Was Ok with the Storage Yard
Person.

Mclane: So You Actually Had Him Help You Establish Value and Identify
What Could Be Destroyed Or Disposed of or What Would Be Impounded.

Meyer: Exactly. We Need to Do Know What He Considered Property, What Was
Trash. We Were Responsible for Everything There Because it Was An
Impoundment Operation. We Tried to Make it Easy for Him And Us. The
Whole Thing Was We Worked on A One to One Basis with Mr. Ditto. There
Was No Negotiation at this Point. We Were Going Through and Going To
Take it off. But We Were Also Trying to Work Cooperatively with Him to
Get The Best Relationship, to Get The Best Process out of this Whole
Incident. Along with This, and as Dennis Says, as We Were Saying, We
Were Working Together, We Had a Video Camera Operator There Who Was
Taking a Video Right from the Very Beginning, and Some of the Shots
You\'ll See Later Will Be What Was Taken, but We Had a Video Camera
There the Whole Time So That We Were Able to Document Everything That
Was There, the Statements That Were Made and the Conditions of All The
Items and I Think this Was Very Important. Otherwise, We Would Have
Spent a Lot of Time Writing Things down And There Is the Interpretation
Of What You Say and What I Say, But When It\'s Taped ‑‑.

Mclane: and If Later on He Was To Accuse of Mishandling His Property or
Losing it or Maybe Even Mistreating Him, the Video ‑‑

Meyer: It\'s All There. I Think That\'s Very Important. Especially with
Something like This, We Were Very Lucky in the Two Incidents We Had. We
Didn\'t Have Any Major Problems. But If We Had, it Would Have All Been
Documented There and I Think That\'s Have a Very Important Thing When
this Is Done, the Importance of Maintaining Proper Property Records and
Also Having a Good Record of This, Because Everybody\'s Image,
Everybody\'s Idea Can Be Different, but with The Camera, it Pretty Well
Tells The Truth about What Happened. We Also Had People Set up for The
Septic Tank the next Day. There Was a Septic Tank on Site. We Needed
That Removed Properly. And We Also Had, it Turned out That the Septic
Tank Operator Was the Same Guy, but We Had Somebody Coming in with a
Small Backhoe Dozer to Smooth out the Pad and Pick up Miscellaneous
Debris at the End. Always on These Incidents It\'s Important to Deal
with the People in a Respectful and Truthful Manner. It\'s Important
That Everybody Knows What\'s Going On. But It\'s Also Important That We
Maintain Officer Safety, Personnel Safety at All Times, Especially at
the Initial Moment Of Contact at the Site Itself. So We Want to Be Sure
That We Know Everybody Who Is There, Their Identities and Everything
Else, and If We Could Run a Short Clip Right Now, We Will Show Some of
the Initial Contacts with the People in the Trailer. Here We Are Iding
All the People Here. The Gentleman in the Black Turned out to Be a
Runaway Juvenile. We Were Able to Get Him Back to His Parents. He
Hadn\'t Seen Them for a While. He Was Living Here. Like I Said, at One
Time We Had Over 10 People Here on Site. When the Day Came We Were
There, We Had Six Living Inside the Trailer, and One Was a
Three‑month‑old Baby, Who Turned Out to Be ‑‑ I Mean, the Mother Was
Quite Capable of Handling The Child. We Didn\'t Have to Interject with
Child Protective Services. But We Were Prepared for That With Child
Seats and Everything. I Want to Reiterate Again, I Think What Was
Successful about This Operation Was Our Organization, That We Had Taken
In Mind Everything That Could Happen, and We Had All the Contingencies
Covered, Even Though We Didn\'t Have to Use All Of Them. The next Thing
Is You Never Know What You\'re Going to Run Into, And in this Case We
Did Run into Some Weapons That Were in the Trailer and We Had to Take
Care Of Those F We Could See the next Clip, Please. Here We Have Chief
Ranger John Blachley Examining a Weapon He Took out of the Case. Turned
out it Was a Shotgun. Always Properly Handling All Weapons. He Is
Checking to Make Sure It\'s Clear, the Slide Is Back and the Whole Bit.
We Had Ranger Biller Doing the Same Thing Here With, I Believe, A .22.
We Ran Both Weapons. They Proved to Be Clear, and When Mr. Ditto Exited
the Site, We Gave His Weapons Back to Him. We Had No Reason to Impound
Them. But for Officer Safety and the Safety of All People on Board Here,
We Needed to Be Sure That Everything Was Safe. This Went into the Same
Deal, Too, That as We Discussed Before, We Don\'t Have the Right To Go
into this Building to Eject These People Out, but They Were Outside the
Building, and Now We Needed to Be Sure That Everything Was Safe Inside
the Building. So We Did Do a Quick What Would Amount to Really a Frisk
of Whole Area to Make Sure There Were No Bombs or Explosives or Anything
like That Inside the Trailer Before We Actually Started the Removal of
It. If We Go to the next Clip, Please. Here Is a Video of How the Site
Looked on the Day We Came In. Like I Said, Here Is One of the Many
Puppies That We Had Running Around, Dogs. You Can See the Trailer. You
Can See the Miscellaneous Outbuilding That\'s There. See That It\'s Just
‑‑ the Whole Pad, the Road, Everything There Was All Graded in by Mr.
Ditto. Another Continuing Deal. You See Some More of the Debris. In the
Middle Is the Septic Tank That Was There. Lucky 7 Mining Claim on the
Trailer. There\'s Identification for it And Everything. What I Would
like to Do Here Is Show One More Slide. Here, Again, You Can See All the
Debris That Was Left by the Side And the Big Thing Would Be in The
Left‑hand Corner of Your Picture, You Can See the Dumpster There. This
Is One Our 40‑yard Dumpsters That We Have, That We Had Brought on Site.
I Want to Say Again That These Guys Who Handle This, They Were Very
Professional in Bringing The Dumpster in Exactly the Right Time. I Told
Them it Was Important They Were There. They Brought it out. It Was
Really a Well‑run Company That We Worked with. I Think It\'s Important
to Establish with These People What Your Needs Are Because it Really
Paid off. Here\'s Some ‑‑ We Ended up with Some Miscellaneous Cans Which
Contained Fluids of Unknown Origin. We Did Have a Ranger Who Was Trained
in Haz‑mat, and He Was Able to Determine That These Probably Were
Petroleum by Products and Were Not Hazardous. So We Ended up Setting up
an Area Where We Moved All These Type of Containers into One Area, and
We Had a Haz‑mat from California Division of Forestry Come in Later and
Remove Them For Us. But You Need to Have an Area Set Aside for Any
Materials like This That You May Come upon. Here Is, Again, the Rear of
the Trailer. The Big Thing, above That Axle Is the Septic and it Wasn\'t
Really a Septic Tank. It Was Just a 55‑gallon Barrel Put into the Ground
and a Line Running into it and Once the Barrel Filled Up, Which it Did
Quite Regularly, the Sewage Ran Out onto the Ground and the Ground Was a
Decomposed Granite And Didn\'t Have Very Good Perk Lace Values and Was
Running down Into the Local Stream Area and Onto Residents\' Properties
Also. If We Could Go to the next Segment, Please. Here Is the Moment We
All Look Forward to in These Things, Is The Actual Removal of the
Occupant Trailer Here. These Guys Here Again Were Great. They Were
Excellent Drivers. They Knew Their Business. They Got in There When They
Said And They Brought it out When They Said. Here We Have it Going down
the Road Here at the End, and You See it Kind of Going off ‑‑ it
Actually Was Going into the East, but it Was into the Sunset There, So
to Speak, as the Lucky 7 Is Driven Away There. There You Go, \"Lucky 7
Mining Claim.\" Here Is What it Looked like Two Weeks Later after We Got
the Septic Tank out and after We Had The Small Dozer Come in and Level
the Pad off. Today this Area Is All Regrown With Vegetation, and It\'s
Flat, But ‑‑ It\'s Not as Rolly as it Used to Be, but It\'s Pretty Well
Gone Back. It\'s Kind of a Neat Thing to See That this Operation Did
Have a Positive Effect on the Resource. Whenever I Go Back There, It\'s
Kind of a Warm Feeling in My Heart That We Did Something Positive for
the Resource.

Mclane: It\'s Obvious, Mike, this Involved Not Only Criminal Law
Enforcement Type Actions but Also You Had to Pay a Lot of Attention to
Administrative Procedures on Impoundment of the Property and Aum the
Notices That Had to Go out.

Meyer: Exactly. And this Is the Whole Thing. We Made Sure ‑‑ Everybody
Knew What Was Going On. We Left a Good Document Trail, And this Is What
I Am Going to Go into next Now, Is the Final Resolution That Happened
Here. Mr. Ditto Went to Court on the Citation. He Was Found Guilty of
Trespass. I Got Together All Our Expenses, And You Know, We Can\'t Go in
for Anything than What We Actually Spent, but He Was Charged with
\$5,000 Worth of Restitution. He Then Developed a Payment Plan Which
Lasted for about Six Months, and I Think We Got about \$600 out of Eye,
and Then He Failed to Pay Any More. Part of the Judgment Was That He
Would Have to Continue to Pay or He Would Be Given Jail Time, 180 Days
in Jail. He Did Not Pay. A Warrant Has Been Issued for His Arrest, and
We Are in the Process of Always Looking for Mr. Ditto When We\'re up in
That Area, and He Will Be Doing Jail Time for Failure to Pay on the
Court Order When We Do Find Him. The Other Thing That Came Back About
the Property Is That We Went Ahead, and I Told Him He Had 30 Days to
Reclaim His Property, He Made No Effort to Get Anything, the Trailer,
Anything That Was in Either of The Dumpsters and Stuff, or the Main
Dumpster That We Put His Property In. I Waited Another 30 Days and
Renotified Him Twice During That Time. So I Actually Had Three
Notifications, the 30‑day, a 45‑day and a 60‑day Notification, and He
Failed to Take the Property. At That Time I Felt it Was Abandoned. You
Know, Based on Our Resource Regulations, That Was Abandoned Property,
and We Had it Removed To the Dump, and it Was Very Easy to Do Because
They\'re Already There and They\'re Just Able to Pick it up and Haul it
Away and We Were Charged a Little More Dumb Dumpage Fee. That Was a Well
Contain You Arized ‑‑ Containerized Way to Do Things. I Would like to Go
onto the next Case at this Time. Mr. Miskoochee Was Kind of a Copycat of
Mr. Ditto. They Were in about a Quarter Mile of One Another. He Saw What
Mr. Ditto Was Doing, And as Things Went a Little Downhill in His Life,
He Followed Mr. Ditto\'s Lead, and He Moved onto a Claim That He Had, a
Quitclaim Deed. As You Can See, the Same Topography as with the Ditto
Claim There. When Mr. Ditto Obtained His Claim, There Was Just a Small
Addit Where the Trailer Was but There Was No Road or Pad Cut or Anything
like That When He First Obtained His Claim. One Our Rangers on Patrol
Saw The Road Had Been Cut in One Day, and We Were Able to ‑‑ and A Pad
Cut In. We Were Able to Trace it Back to Mr. Miskoochee and Went to His
Residence to Perform Him of Proper Procedure He Needed to Be Following
on Working Mining Claim. When We Arrived at His House, We Found He Was
Being Evicted, and We Again Informed Him That this Was Not a Place to
Live, but He Said, Well, He Might Be Doing Something like That. We
Returned to the Site in about ‑‑ I Think about Two Weeks, and He Had the
Camper Shell at the Site at this Time, and He Was Living in this. At
this Time I ‑‑ He Denied, of Course, That Anything Had Happened with the
Road. I Kind of Glossed over it I Shouldn\'t Forget That. He Said He
Knew Nothing about How the Road Was Put In. He Said He Might Know Some
People Who Indict but He Didn\'t Give Any Order or Pay Anybody to Do
Anything like That at All. It Just Happened.

Mclane: but He Was the One That Showed up Living There.

Meyer: Exactly. It Was One of Your Caveats, \"I Don\'t Know How it
Happened. Somebody Else Did it and Now I\'m Here.\" It Was One of Those
Type of Things. I Informed Mr. Ditto That He Had 14 Days, a Camping
Limit There, And That Would Be It, and I Returned on the 15th Day, and
He Was Still Camping There. I Issued Him a Citation for Illegal Camping.
He Did Not Appear ‑‑ He Did Not Pay the Citation, and He Did Not Appear
in Court on the Citation. So He Had a Fta, Failure to Appear Warrant, So
I Had the Warrant from the U.s. Magistrate Which I Kept in Abatement at
this Time. I Figured There Might Be a Time I Might Need to Use it in
Relationship to Something Else. So I Had this Warrant at this Time for
Him. Here Again, the next Thing That Appeared Was this Trailer. The
Trailer When it First Appeared as the First Picture Shows Did Have
Siding on It, but Things Were Pretty Rough, and Mr. Mikskoochee with His
Family Took the Siding off to Sell it As Scrap. It Didn\'t Meet the
Standards. So He Ended up Dumping the Siding on the Side of the Road.
But this Is What We Had in Basically a Residential Area. Houses Were
Within about 100 Feet of this Area. Mr. Miskoochee\'s Wife Came Home One
Day, Parked the Car in Dry Grass, and Caused a Three‑acre Fire in the
Area. So We Had Another Hazard We Were Dealing With, along with the
Sewage, and this Trailer Didn\'t Even Have a Holding Tank. The Sewage
Went Directly onto The Ground, and like I Said Before, it Was Decomposed
Granite and it Flowed Right into The Local Stream Course There. Here
Again, We Had Multiple Problems.

Mclane: Mike, Did You Have Other Agencies Taking Reports like on The
Fire, the Department of Forestry and ‑‑

Meyer: Right, California Department of Forestry Was Looking at It, and
Tried to Cite Them, but Decided Not to for Their Expenses, but They Were
Involved. We Had the County Health People Coming out and Checking. And
Also, Again, We Had a Number Of Animals and We Actually Had Animal
Control out There. So We Had a Lot of Agencies Looking at this and a Lot
of Concern about What Was Going On.

Mclane: So He Had Drawn Not Only BLM\'s Attention, but the Attention of
Those Other State And Local Outfits?

Meyer: Exactly. So ‑‑ He Only Had the Claim. He Had No Plan of
Operation. He Had Nothing. And He Filed Nothing. So We Had ‑‑ We Were
Waiting for The Ibla Decision and Then to Work on Both These Claims at
the Same Time, Because They Were Kind of Related and We Wanted to Handle
Them. I Gave Mr. Miskoochee the 30‑day Notice Again. I Came Back on Day
25 and Told Him Again on Day 25. He Basically Told Me Where I Could Go
and What the BLM Could Do. I Said I Would Be Back Again, Which We Were.
If We Could Have the next Segment, Please. Here We Are on the Day That
it Happens. You Can See the Siding off the Trailer Again, the Tin Shed
That Was Brought In, Miscellaneous Wood, Plywood Laying All over. It
Wasn\'t a Well‑kept Site. Actually, Ditto Was a Little More Organized.
He Had a Lot of Stuff, but He Was More Organized. This Had Everything
Laying All Over. We Didn\'t Know What We Were Going to Run into. Here
Again, Very Important, When We Came on Site for Officer Safety and
Everything, What We Had with Mr. Ditto Is a Long History ‑‑ He Was Much
More Abrasive to Us, Much More Threatening in What He Would Do Upon Our
Return. So We Went in Here ‑‑ We Had ‑‑ I Believe We Had Four Rangers
And Two Riverside County Sheriff\'s Deputies with Us. We Were Unsure
about If He Had Any Weapons on Site. It Had Been Alluded To. I Had Seen
Them on the Site Earlier. So When We Went on Site, I Went To Contact
Him, and He Was Extremely Evasive in His Actions And Everything, and ‑‑
at That Time I Decided I Better Institute the Warrant. So He Was Taken
into Custody at Our Initial Contact with Him That Day for the Failure to
Appear Warrant. So If We Could See the next Clip, Please. Here We\'re
Leading Him Away. And in the next Video, We\'re Explaining to the Woman
‑‑ I Think I Will Be Quiet Right Here. This Trailer Is Going to Be
Impounded and You Will Go out Be Allow to Do Get Things Back out Of It,
but it Will Be Locked Away. It Will Be Moved off this Lot by 12:00 this
Afternoon. So If There Is Something You Need for Your Daily Life and
Everything, You Need to Get That Out Right Now. All Right? Ok? And If
You Need to Call Somebody, We Have a Cellular Phone Inside the Vehicle.
Can You Call. You\'re Free to Use Our Phone. No Problem at All. Here
Again, as You Could Tell, We\'re Trying to Be as Cooperative and
Courteous as We Can with Everybody. We Want to Tell Them What\'s Going
On. We Want to Help Them in Every Way. But the Negotiations Are Done.
This Is What\'s Going to Happen. You Have Two Hours to Remove the
Things. Here Is What You Can Do. Here Is What We Will Provide You. We
Want to Help. We Want to Be as Cooperative as We Can, but this Is
Happening Today. You\'ve Had All this Other Time To Do Whatever You
Needed to Do. Today\'s the Day That\'s Going to Come about. If We Could
Go to the next Clip, Please.

We\'ll Let You Get That. The Best Thing Is to Put as Much Stuff in That
Camper Shell as You Can.

I Want My Christmas Box That Has My Tree and Everything Else ‑‑

this All Can Go Here.

Say That One More Time, Mike.

the Generator She Wants Junked. Ok?

this Can Be Junked. That Can Be Junked.

Are You Sure?

Yes, I\'m Positive. I Won\'t Live like this Again.

Meyer: Think the Important Thing Is the Fact She Says, \"I Never Want to
Live this Way Again.\" I Think That\'s Kind of a Statement That, You
Know, this Is Not a Positive Experience for All People Involved and We
Had Two Juveniles Living Here, No Heat, No Water, No Nothing. It Was
Pretty Harsh Conditions To Be In. I Think You See in the First Part of
That Clip of How We Went Ahead and Had Her Tell Us What Was Trash, What
Was Not. She Wanted to Save the Christmas Lights. We Made Sure Those
Were Set Aside. Things like That. We Were Working with Her. And We
Wanted Her to Tell Us What She Thought Was Trash, What She Was ‑‑ What
Was Property, So That We Had this Properly Taken Care Of. We Had the
Same Deal, the Two Dumpsters and Everything, the 40‑yard Dumpsters
Available and We Went Through with the Same Process Again. If We Could
See the next Clip, Please. This Is a Big Cooperative Effort. Here Is
Actually the Area Manager, Julia Dugan, Helping Us Out. This Is Some of
the Lesser Trash We Were Able to Hand Carry and Take to the Dump Here.
Again, a Cooperative Effort by Everybody in the Office Here. We Had a
Great Turnout. All Trying to Work to Help the Resource Here That We\'ve
Got. You Can Just See None of this Stuff Relates to Mining in Any Way.
And Here Again, the Trailer Being Taken off. This Was a Little Tacky
Here. He Had to Really Maneuver it Around the Camper Shell. A Private
Person Came in and Tried to Get the Camper Shell Off and Was Unable To.
So We Had to Move the Camper Shell the next Day. We Had to Bring the
Flatbed Trailer and the Trailer People Did That for Us Also. But Here
Again, You Can See the Other Side of the Trailer with The Siding Removed
That Was Tried to Be Sold for Scrap. This Area They Show in the Trees
Was Something When Dennis Was Out That We Had an Occupancy Way Back
Indian It\'s Day as a District Ranger.

Mclane: I Remember That. I Remember the Place.

Meyer: Here Again, the Dumpster Again, Putting Away the Rest of The
Trash and Everything. It Was about 100 That Day. I Think it Was Kind of
Warm. So. Once We Get Everything Cleared Out Again, as We Want to Be
Sure That No One Is Going to Come Back, and after They\'ve Got a Nice
Clean Pad to Come Back and Reestablish Themselves, So We Made Sure That
We Had the Site Cleaned Off, All the Debris Taken Away, and We Went
Ahead And Brought in Three Big Boulders. If We Could See the Last Clip,
Please. Here We Drug These Big Boulders Down to Stop Any Access Back up
The Road Itself. Here Again, Mining Activities, Whatever, Would Have
Been No Problem. But We Were Concerned about People and Easy Access for
Somebody Else to Move into the Area, Because this Had Brought ‑‑ Here Is
the Pad All Cleaned Off and Everything of All the Debris. Here Again,
this One, as Probably 75% of this Area, Has Been Revegetated and
Everything. You Can See the Total Pad. What I Was Talking About, the
Importance of Putting up Some Kind of Barricade Again Is That As We Were
Removing in ‑‑ the Trailer, I Had a Guy Come up and Say, Oh, Well, I
Want to Pay for It. I Want to Live Here. I Mean, People Were Really
Looking We Moved Somebody Else Out and Now We Prepared a Site For
Everybody Else. Everybody Is Watching. So It\'s Real, Real Important
That We Get this Message Across That this Is Not Proper. It\'s Kind of
like the Old Syndrome Where You Have a Vacant Building and it Gets a
Rock Thrown in it And, the Windows Busted or Siding Is Knocked out And
If You Don\'t Replace That Right Away, Another Window Gets Busted and
Another Window, and People Think That\'s What Can Be Done. So We Need to
Go Forward and Show That this Is Not a Proper Thing to Be Doing on
Public Lands. Mining Is Great. We Encourage It. But Illegally Living on
the Claim Is Not What We\'re about. In Kind of Summary Here, I Think The
Big Thing to See Is That You Need to Have Good Organization. You Need to
Know as Much or More, Always More than the Claimant Knows about the
History Of the Claim, What\'s Going On. You Need to Do a Good
Reconnaissance of the Area, to Be Prepared for Any Contingencies That
Come Up. You Need to Have the Cooperation ‑‑ I Mean, We\'re Not an
Entity Unto Ourself. You Need the Cooperation of State and Local, County
People, Fire, Health. We Had Everybody Involved. All of Them Weren\'t
Necessarily There on Site, but They Had All Been Notified. Because You
Just Can\'t Call These People up at the Last Moment and Expect Them to
Show Up. You\'ve Got to Notify Them. Everybody\'s Kind of like Us. They
Don\'t Have as Big of Budgets Anymore, So They May Be Doing Something
the Day You Want Them to Do Something. So You Have to Have Them
Prepared. But I Really Feel Very Good About These Two Cases, That We
Were Able To, after the Ibla Decision Had Come Down, We Were Able to
Remove These Claimants From the Occupancy and Start to Get That Part of
the Resource Back to its Natural State.

Mclane: We Noticed Mr. Miskoochee in Handcuffs. What Happened to the
Criminal Case and Did the Word Get Around To the Other Potential
Violators?

Meyer: Yes, it Did. I Am Sorry, I Thank You, Dennis, For Reminding Me
about That. What Happened Is He Went out on The Federal Warrant, Not on
the Arrest for the 2920. It Was on the Federal Warrant. As Anything Was,
He Was Released On His Own Recognizance That Afternoon by the Federal
Magistrate on the Warrant with a Promise to Appear. He Did Appear Both
on the Warrant and the Citation. He Was Found Guilty, and He Was
Assessed, I Believe it Was, \$3,000. I\'ve Got it Written down. It Was
Approximately \$3,000, of Which We Set up a Payment Plan Again, and We
Had Payment for About Two Months, and Then Mr. Miskoochee Disappeared,
and He Also Has a Warrant out for His Arrest, with Jail Time to Be
Served Because of His Failure to Pay His Proper Fines and Everything. So
Both Cases Were Adjudicated In Our Favor. I Think it Was Basically
Because We Had All Our Ducks in a Row, Everything Was Lined Up. We
Followed the Civil Procedures First. They Failed. Then We Went to the
Criminal Procedures. We Followed the Proper Criminal Procedures, and We
Were Able to Get the Case Closed in this Manner, and We\'ve Had ‑‑ and
Mr. Miskoochee Was the Same Way. He Got One Small Load of Property out
of the Dumpsters And He Got the Notifications That Were Return Receipt
Requested, the Three Again over A 60‑day Period. He Failed to Pick Any
of His Property Up, and it Was Also Taken to the Dump.

Mclane: Good Combination of All Remedies and Techniques.

Meyer: Right.

Shumaker: Good Use of the Bundle Of Tools. We\'re Getting Really Close
to Lunch. We Have a Good‑sized Pile of Faxed Questions and I Would like
To Handle One Before We Go, and We\'ll Look at the Rest During The Panel
Forum this Afternoon. Incidentally, this Is a Really Good Time for You
to Be Thinking About Questions to Call in with Or to Fax in Questions,
Because We\'re Going to Devote the Lion\'s Share of this Afternoon to
Answering Your Questions, and We Would Sure like to Hear from You. As
You Both Know, with a Travel Trailer, Travel Trailer ‑‑ this Question
Comes in from Baker, Oregon. Travel Trailer Has Two Holding Tanks, Three
If You Include Fresh Water. One of Them Is for Black Water, Which Is the
Stuff That Goes Into the Potty. And the Other Is for Gray Water, Which
Is, You Know, from the Shower, from the Sink, Basically Wash Water. The
Question from Baker: You\'ve Got a Trailer like and That They\'re Asking
about Health and Safety, Noose Unviolations. Here You Have a Travel
Trailer Or Camper, Self‑contained as I Just Described. But They\'re
Draining the Gray Water onto the Ground, Not the Black Water. Is That a
Violation?

Mclane: I Can Answer That, Matt. Our Bureau Regulations in 8365 Part
Does Prohibit Draining Raw Sewage. However, it Does Not Prohibit Gray
Water. If the Local Districts or Field Offices Need to Prohibit the
Draining of Gray Water for Whatever Purpose, They Have to Do That by
Supplemental Rule for That Particular Local Area.

Shumaker: That\'s a Question That People Ask a Lot. It\'s Good to Have
That Cleared Up. Because Basically That Water Is The Same Water You\'d
Have If You Were Just Using a Basin and Then Throwing It.

Mclane: the Reasoning on Not Prohibiting it Nationwide Is That for a
Typical Camping Situation, the Person\'s Only There Temporarily and the
Draining of Gray Water Is Not That Great of Impact. However, If You Put
All of Those People in a Campground or You Put Somebody in the Same
Place For Nine Months, a Year, Two Years, Then the Gray Water Is a
Problem, and it Should Be Dealt With with a Supplemental Rule.

Shumaker: for Two Wakes It\'s Not That Big a Deal. Great. It\'s Lunch
Time. We\'ll Go off the Air at this Point and We\'ll Take Our One‑hour
Break. We\'re Getting You out on Time Today. This Afternoon in the Final
Session of the Course, We\'ll Be Opening up the Phones to Hear From You,
and We\'ll ‑‑ We Would Like to Get Your Faxes. We Would like to Hear
Your Comments and Questions on Anything We\'ve Covered, and this Will Be
Your Chance to Get Advice from Our Panel of Experts. If You\'ve Got a
Real Situation You Would like Some Help On, Give Us a Call. Now, If
You\'re Recording Our Broadcast, this Lunch Hour Would Be a Good Time
for to You Change Tapes in Your Vcr. When We Come Back, We\'ll Be Right
Here on Galaxy 3, Transponder 21. So Don\'t Touch That Dial! Again,
We\'ll Give You a Three‑minute Test Signal at 12:00 Noon Pacific
Daylight Time Before We Start Our Afternoon Segment. So Grab Something
to Eat and We\'ll See You in about an Hour.

Shumaker: Good Afternoon, Everyone and Welcome Back to the Last Segment
of the Mining Claim Use and Occupancy Course. If You\'re in Countering
Difficulty Receiving Our Signal, There Is Nothing Wrong with Your
Equipment or Your Satellite. We Appear to Be Having Some Trouble at this
End Getting Our Signal from the Site Here to the Uplink Site, and I
Understand it Will Be Cleared up as Soon as it Can. So Please Bear with
Us. Anyway, Our Panel of Experts Is Back with Us Today and They Are Mike
Meyer from Palm Springs, Scott Murrellwright from Folsom, Dennis Mclane
from Boise, Linn Gum from Ridgecrest and Rick Deery from Headquarters. I
Understand That Marianne King From the Solicitor\'s Office in Portland
Is on the Line with Us, And Marianne, Welcome Back. I Understand You
Have Some Comments on ‑‑ Follow‑up to the Question We Had Just Before We
Went to Lunch.

Marianne: Indeed I Have a Comment On the Information You and Rick Gave
Relating to the Untimely Filing of a Notice of Appeal of A 3715. In the
3715 Regs, the Appeals Kick over to the Part 4 Regs, Which Means That
the Appeal Has To Be Filed Within 30 Days, and That\'s Jurisdictional,
with the Office of the Decision‑maker, Who May or May Not Be the Area
Manager. Now, If the Decision‑maker Receives a Notice of Appeal or
Something That Can Be Construed As Such, It\'s Very Loose What a Notice
of Appeal Is, in an Untimely Fashion, the Procedure Is for Him to Return
That Notice To the Sender. But What We Want to Do in That Case Is Be
Sure to Document, Perhaps Keep the Envelope. Should Be Sure to Document
When It Was Received and Keep a Copy Of the Notice. Then Write a Letter
to the Person Attempting to Appeal Telling Them That it Was Untimely
Filed and Is Therefore Returned. Now, the Reason ‑‑ and Send That Letter
by Certified Mail. The Reason to Do That Is That The ‑‑ Technically the
Letter Returning the Untimely Notice Is In Itself an Appealable
Document. So the Person Attempting to File An Appeal of the 3715 Has the
Right to File an Appeal of the Denial of Receipt of That in a Timely
Manner. So Once Again, the Case File Is Important Because It\'s Going to
Have to Go to Ibla If the Person Intends to Appeal the Denial of The
Receipt of the Appeal. So Both Rick and Matt Were Absolutely Right in
Saying That They Thought it Should Be Returned. I Just Thought I Might
Clarify That What Is Then Appealable Is Not the 3715 Decision but the
Decision Letter Rejecting the Notice of Appeal.

Shumaker: Thanks for Clearing That up for Us. We Did Get a Small Flurry
of Faxes During Lunch That Were Asking for Clarification, and I Think
You\'ve Cleared it up Pretty Well. Rick?

Deery: Sounds Good to Me. It Always Seems a Shame That We\'re Going to
End up with Yet More Appeals to Further Clog Down the Washington Office
of The Interior Board of Land Appeals, But, Hey, I Guess That\'s the Way
it Goes, and this Is Something You Have to Be Aware Of, That If We\'re
Working With Somebody out There Who, as In Mike\'s Case, They\'ve Got No
Place Left to Go, Throwing Those Pieces of Paper out Is Absolutely,
Positively a Logical Thing to Do. Delay, Delay, Delay at Every Turn. As
Marianne Has Pointed Out, If Your Paper Work and Your Case File Is Good
and Righteous, it Makes it Easier to Get onto the Next Phase.

Shumaker: Great. Anything Else for Us, Marianne?

Marianne: Not at the Moment.

Shumaker: Ok. Thanks Very Much for Calling in And Keep Us Honest and
Accurate And on Track. We Appreciate It. We Received a Number of Faxes,
As I Mentioned, During Lunch and We Have Some Left over from Previous
Sessions. We\'ve Got a Couple of Good Ones Here And, Rick, I Am Going to
Pass this One on to You. I Think It\'s a Good Question, Mainly Because
the Words \"Washington Office\" Are Included In It.

Deery: Oh, That\'s Absolutely Fine. Matt, this One Says: I\'m a Surface
Compliance Specialist. I Have 10 Years in 3809 Compliance but I\'m Not a
Certified Mineral Examiner. If I Make a Recommendation of Concurrence to
the Authorized Officer, Is Washington Going to Be Upset? Well, No,
We\'re Not Going to Be Upset. If You\'re Making Recommendations And
You\'re Not a Cme. Matt Said Earlier That We Have Lots of Folks Involved
in this. There\'s Lots of Ologists Who Should Be Involved in this. We
Work as a Team. The Entire Resource Area or Field Office, Depending on
Where You Are in the Scheme of Things, Should Be Devoting Some Attention
to These Cases. It\'s Perfectly All Right to Say, \"Look, We Don\'t
Think It\'s Mining, We Don\'t Think It\'s Reasonably Incident, and to
That End, If I Make a Recommendation To the Guy Who Files the Decision
and You\'re Not a Cme, I\'m Not Going to Be Upset about That. What We
Insist On, and What We Need to Have, Is at Some Point In the Loop, Some
Point in the Process, a Cme Needs to Have Gone out on That Site and Have
Looked at it and Can Say Based On Firsthand Testimony and Swear To it
under Oath That He Went, He Saw, He Looked and It\'s Not Mining. That\'s
What\'s Important. Linda Anderson Brought That up Yesterday. We Need
People Who Have a Degree Of Credibility Looked upon by a Court and That
Person Is the Cme. Now, My Office Doesn\'t Have Cmes. Borrow One. Look
Around and See If Another Office Has a Cme Who Can Support You. Better
Yet, Send Some People Down to NTC, to Matt in the Training Center, So
That They Can Become Cmes. We Can Use More of Them. There\'s Going to Be
More Work For Them to Do. Matt?

Shumaker: We Have Another Question That Follows on That. So You\'re Not
off the Hot Seat Just Yet. This One Is Related to the Previous Question.
One Thing I Want to Toss In, Rick, this Question You Just Answered Came
from Medford, and In this Case, You Know, Somebody Who Is Not ‑‑ I\'m
Sorry ‑‑ Well, It Came from Oregon. Oregon Is a Big State, and Sometimes
I Get Geographically Dyslexic. Even Sometimes If You Concur, There\'s
the Possibility That Litigation Will Follow Because The BLM Is Doing
Something That\'s Going to Be Protested by Concurring.

Deery: Exactly. And You Need to Look over the Landscape of Your Decision
Making, and If There\'s That Possibility That That\'s Going to Arise,
That Somebody Is Going to Say out There, No, I Object, This Is Not a
Proper Decision For BLM to Be Making, Then at The Same Time, There Ought
to Be The Opportunity for a Cme to Go Out and Make Sure That the Last
Duck Is in the Right Row and Say, Based on My Experience, Based on My
Knowledge, Based on My Personal Recognizance of the Area, it Is a Mining
Operation. It Is Reasonably Incident. Hopefully Not All of Those ‑‑ All
of Our Cases Will Need Something like That, but Certainly We Do Need a
Cme to Say at the End of a Case Where We\'ve ‑‑ at the End of a Decision
Trail When We\'re Ready To Say It\'s Not Reasonably Incident to Give Us
Something in Concurrence. Now, this Leads Us to the next Question. We
Have a Question from Alaska. It Says: I Have the Impression From the
First Course That We Would Need to Do a Full Surface Use Determination
on Each Occupancy. Day One of this Course Suggested The Shorter
Affidavit Would Be Acceptable. Which Is Correct? If an Affidavit Is
Acceptable, Are There Any Circumstances When A Full Surface Use
Determination Would Be Desired or Required? Again, this Depends on the
Exact Set of Circumstances. The Surface Use Determination That\'s
Described in the 3060 Manual Was a Creature of the Old Contest‑driven
System under 3712. It Was Intended to Solve That Problem and That
Problem Only of Making a Contest Case. It Was the Point Where You
Plugged Everything Together and Built Your Argument. We\'re Doing That
with Our Case Files Now, Matt, and So That\'s Why We\'ve Come Back to
this Notion of the Administrative Record, the Case File, the Case File,
the Case File. If Everything Is in the Case File, Then a Simple, Short
Affidavit May Be Sufficient. I\'m Never Going to Tell You That There Is
Absolutely No Time When We Will Ever Do a Surface Use Determination
Because Sure as I Say That, along Is Going to Come A Case and You\'re
Going to Need To Have That Level of Detail. But There Are Going to Be
Very Few Cases, Very Few Circumstances Where We Need to Do the Classic,
Full‑blown Mineral Report/surface Use Determination That Was Written Up
in the 3060 Manual and Mandated by the Old Occupancy of Mining Claims
Manual.

Shumaker: That\'s an Interesting Point. If I Recall from Our Broadcast
Last Year, We Were Pretty Hot on Doing Full Surface Use Determinations.
Is this Sort of a Streamlining Of the Process That We\'re Talking about
Now?

Deery: It\'s Sort of a Recognition That, You Know, We\'ve Got Other
Things to Do. We\'ve Got a Lot of Jobs out There. We\'re Increasingly
Finding That We Have a Lot Fewer People to Do The Darned Work. So, You
Know, You Cannot Let Form Drive Your Function, and Saying, Look, You Got
to Have This Mineral Report and That Mineral Report and Fill out A, B,
C, D, E, F and G and Make Sure It\'s All Reviewed. That\'s a Case of
Form Preceding Function. The Form That Your Report Should Take Should Be
Driven by its Function. It Should Be Driven by the Needs Of the
Assistant U.s. Attorney, By Your Rangers, by Your Managers, by the
Person Sitting Down Looking at the Case File Saying \"I Don\'t
Understand this Case File, I Need Some More Information.\"

Shumaker: Ok. You\'re Not off the Hot Seat Yet, Rick, Because I\'d Say,
First Off, Appear Good Affidavit Would Be Probably the Real Meat of a
Surface Use Determination Report. Once You Take out the Introduction,
the General Geology, Where it Is, Which Is All Going to Be in the Case
File Anyway, the Affidavit Is the Evaluation of the Use and Why it Is or
Is Not a Reasonably Incident Use. There Is Some Interim Guidance
Pending, Probably Sitting Around On Rick\'s Desk, That Has Some Sample
Affidavits of Exactly the Type He Is Speaking Of.

Deery: I\'ll Take the Blame for Not Getting That out in a More Timely
Fashion. Matt Wrote These Things up and We Have Been Sort of Fooling
Around with it a Little Bit. I Think They\'re Good Examples. I Think We
Need to Sit down and Rethink the Way We Did Business In the Old Days and
Think That Maybe There Is a Better Way to Do It, and an Affidavit May,
in Fact, Be Exactly What You\'re Looking for.

Shumaker: Yeah, the Affidavit Will Prevent the Problem I\'ve Seen with a
Lot of the Surface Use Determinations Where the Authors Decided to Do
the Definitive Work on the Geology Of That Physiographic Province. It
Was Worse than Useless.

Deery: What That Does Is That\'s Somebody Who Is Not Comfortable With
What They\'re Doing and They\'re Padding Their Document, Padding Their
Report. Stay Focused. The Affidavit Is a Way of Staying Focused. There
Is a Lot of Boxes in Some Of These Reports That Don\'t Serve Any Purpose
Other than to Help Make a Contest Action Absolutely Sustainable on the
Basis of a Single Document. We\'re Not Dealing with a Single Document
Anymore. We\'re Dealing with a Pile of Documents. Some Cases Are Going
to Be about Like This, and Those Will Be the Things That We Turn To.
We\'re No Longer in That Contest Mode, and So We Don\'t Need to Approach
it from the Contest Angle.

Meyer: the Surface Use Determinations Even Themselves Were Originally
Designed to Do Away with the Need for a Validity Examination Report,
Which Is a Document That Needs To Stand on its Own.

Deery: Exactly, and You Want to Take Care Here. If You Read Some of
These Cases, You Don\'t Want to Go Sliding Into Validity in These Cases.
Look at Bagwell. One of the Arguments in Bagwell That Was Being
Presented Was Bordering on a Full‑blown Validity Exam. There Is a Lot of
Time, a Lot of Effort and a Lot of Work That Had to Go into That Case,
Whereas We\'re Looking for a Brand‑new Trail in the Wilderness of
Occupancy/trespass, Which Says You Didn\'t Meet this Rule, You Didn\'t
Meet this Part of the Rule, and So You\'re Not in Compliance with the
General Part Of the CFR and You Shouldn\'t Be Here. We\'re Not Going to
Go out And, As Matt Said, Describe the General Geology of All of Eastern
Oregon So That the Judge Can Find It. It Should Already Be in the Case
File.

Shumaker: That\'s Right, Assuming The Geology of Eastern Oregon Is Even
Relevant.

Deery: Exactly.

Shumaker: I Want to Point out Also That the Interim Guidance That Rick
Has, I Won\'t Use the Word Sitting On, So Scratch That From the Record,
but the Interim Guidance That Rick Is Working on Also Contains Some
Sample Letters, Sample Letters of Reminder, Sample Inspection Reports,
and Also Because Some People Have a Problem Understanding Exactly the
Difference Between a Travel Trailer, a Residential Trailer And on and on
and On, There Is Sort of a Trailers 101 in There That May Also Be
Helpful.

Deery: and as You May Have Guessed, Matt Is My Partner in This ‑‑
Partner in Crime in this Interim Guidance.

Shumaker: I Will Try to Be on Leave and I Will Just Forward My Calls to
You. Also Rick Mentioned the Affidavits That Will Be in There. They Are
Not Just Gined up for This Exercise. They Are Actually Real Affidavits,
Being Used in a Real Case. We Have Just Changed the Names, Dates and
Locations and Even Moved it out of the State. They\'re for Real and Only
a Page And a Half, and the Assistant U.s. Attorney That\'s Working on
Them Really Liked Them. Let\'s Move On. We Have Some Other Questions.
Again We Would like You to Fax In Questions. Here Is Your Big Chance. We
Would like to Hear from You. We Had a Batch of Questions That Came in
Just Before the Lunch Break, and They\'re All ‑‑ as Bullwinkle Used to
Say ‑‑ on This Itty Bitty Card. I Would like to Pass this to Dennis. And
He Mike Were Sort of Laughing at Them Before Lunch. Maybe You Could Go
Beyond Chortle and Go into Some Answers Here.

Mclane: I Am Not Sure I Total Totally Understand. Says ‑‑ Temporary
Occupancy Greater than 14 Days, Are They Or Are They Not, and the First
Part of That Is, Tent or Camper Shell Not Self‑contained, Slit Trench,
Pit Toilet, Wash Water Thrown on Ground. I Guess the Question Is Are
They Or Are They Not Violations. If, Indeed, We\'re Talking in That,
Number One, Raw Sewage, We Are Talking about a Violation, That If a
Person Drains or Leaves That Raw Sewage There, That Is, Indeed a
Violation of Regulations. Travel Trailer Camper with Self‑contained
Potty but Gray Water Drains onto the Ground. That\'s the One We Answered
Just Before Lunch.

Shumaker: Which after We Broke For Lunch, it Seemed to Be an
Inappropriate Thing to Lead into Food with.

Mclane: Small Hydraulic Fluid or Oil Spills. Those, Indeed, Can Be
Citable Offenses. An Example of That Is Quite Often We Catch People That
like To Drive Their Car onto the Public Lands and Drain Their Oil. That
Is Indeed a Violation of Our Regulations. Same Would Be True Regardless
of Quantity on How Much Is out There. Depends on Whether They
Deliberately Dumped it or It\'s a Legitimate Accidental Spill.

Shumaker: If Somebody with Driving on a Two‑track with a Low Ground
Clearance Vehicle and Inadvertently, Shall We Say, Changes Their Oil on
a Sharp Rock, it Might Not Be a Citable Offense.

Mclane: They Have to Intend to Dump That Fluid onto the Ground. However,
a Point Can Be Made About Whether the Fluids Are Stored Propertily So as
to Prevent Their Spill or Prevent Their Discharge.

Shumaker: That\'s a Very Good Point. Aye Deal Fairly Extensively with
The Nevada County, California, Department of Health for a Class We Have
up There and They Are Very Tight about Storage of All Sorts of Fluids.
That\'s a Good Point. Some of the Questions That I Think That Are on
That Fax, Which I Believe Came from Baker, Oregon, Might Bear Having the
Person Who Sent That in Call to Clarify. I Know You\'re Kind of
Struggling With Exactly What\'s Being Asked In a Couple of the Instances
There. Who Is the Author of That One.

Mclane: Ralph Kunz.

Shumaker: Ralph, If You Can, Give Us a Call. If We Haven\'t Answered
Your Question Satisfactorily, Anyway, We\'ll Try and Get Your
Clarification and Go from There, Because I Know These Questions That
You\'re Asking Are Probably On the Minds of a Lot of Other People.
Anyway, in the Meantime, Why Don\'t You Just Hold onto That One. I Have
Another Question, Probably Appropriate for You, Dennis, and Largely
Appropriate For You, Dennis, Because You Are The Closest One to Pass
this To. You May Pass it on down to Mike. I Didn\'t Say You Had to Pass
it On to Mike.

Mclane: My Pleasure.

Meyer: Sir, Agents and Rangers In ‑‑ in Conjunction with Haz‑mat
Hydrologists Can Enforce The Clean Water Act Also in a State ‑‑ Any
State and Other Federal Laws. We Can Cooperate with Epa and Other Fbi,
et Cetera. 100 Percent Right. We All Work Together. It\'s from Mike
Dotson in Needles. You\'re Right. We All Work Together.

Shumaker: I Have Another Question Appropriate for Rick. Actually this
Question Came from Oregon and It\'s Directed to Me. But since Rick\'s
Here, Go to the Source.

Deery: this Says: We Recognize The Need to Focus Initially on More
Flagrant Cases, However, We Want to Know If by These Regulations at
3715.7‑1a2 We May Issue Suspension Orders for Those Existing Occupancies
Who Fail to Comply with State Statutes for Sanitation and Building
Permits and Whose Occupancy Is Determined to Not Be Reasonably Incident.
This Is Basically a Local Call. Those Cases Are Going to ‑‑ Don\'t Sound
like ‑‑ Let\'s See. All Right. You Can Make the Argument That They Are a
Threat to Health and Safety. Because You Do Not Comply with One, State
Codes, Two, They Are Not Reasonably Incident, and They ‑‑ and They\'re
Existing. All Right. You Can Start to Think about Sending Those out.
It\'s a Case Load Question. We Would Prefer That the Ones That Are a
True Threat to Health And Safety Be Dealt with First. If These Aren\'t a
Crisis, If These Aren\'t a Major Concern in The Sense That They\'ve Been
There for 10 Years, They\'ve ‑‑ They\'ve Had Time to Ripen and Mature,
They\'re Not a Crisis Now, and Probably Won\'t Be a Crisis a Few Months
Further down The Road. That\'s One of the Points We\'ve Tried to Stress
Throughout This, That it Took Us a Long Time to Get to this Circumstance
Where Scott\'s Got 60‑some‑odd Occupancies and Linn\'s Got 59 on Him,
and Others Have Similar Numbers, and When We Put this Tool Kit Together,
We Understood That it Was Going to Take an Equally Long Time to Get the
Things Worked Through. The Director Alluded to this in His Introductory
Remarks. So There Is a Need to Immediately Deal with Those Cases That
Are a Threat to Health and Safety. There Is a Need to Recognize Those
Legitimate Operators. And Then Everybody Else Stands In Line and You
Start Picking The Ones That You Can Reasonably Expect to Deal with with
the Resources You Have on Hand, and That\'s the Question, Resources On
Hand.

Shumaker: Because of Some Questions That We Had Yesterday About the
Privacy Act, We\'re Hoping to Get a Records Administrator on the Line to
Try And Clarify Just What Parts of Mineral Files, Such as 3809, 3715 Are
Recordation Files Are Subject to the Privacy Act, and As I Understand
It, Our Folks in The Control Room Are Trying to Round That Person up and
We\'ll Keep You Posted on How That Happens. In the Interim I Have Got
Another Good Question Here ‑‑ Well, I\'ll Pass this ‑‑ Actually I\'ll
Just Hold this and Not Pass It and Ask it of Dennis and Mike. When
You\'re Impounding a Travel Trailer, And, Again, this Is One Of Those
Self‑contained Things With a Door That Locks, Do You Inventory the Items
Within it or Do You Just Clear It, Seal it And List it as a Single Item
Such as a Travel Trailer with Miscellaneous Household Items Inside?

Mclane: Our Law Enforcement Inventory Policies That Work Not Only for
Impoundments as Searches as Well Require Inventory of the Entire
Contents, Including Closed Containers Inside the Camper Shell, Which
Would Mean Cupboards and Little Boxes and Spaces, to Make Sure We Have a
Complete Inventory of All the Property, We Have Documented All That
Property So That If Later On Somebody Comes Back and Says My
Grandmother\'s Diamond Ring Was in That Tiny Box and Now the U.s.
Government Ows Me \$250,000, We Can Say, No, There Was Not a Diamond
Ring in the Little Box.

Shumaker: What Do You Do If You Encounter Contraband under Those
Circumstances?

Mclane: Mike?

Meyer: it Would Be a Citable Offense Because We Were Inventorying under
Our Policy And During That Inventory We Came upon an Item of Contraband
And Thus it Was Legally Found And We Would Go Ahead and Cite Under That.

Shumaker: Ok. Again, We Have Some Time for Some Questions and Some Faxes
Questions, If You\'d like to Get In Touch with Us. In the Meantime, We
Have a Question Here from Utah, and I\'ll Just Hand That to Rick,
Because I\'m Not Sure I Understand it and Because I Know Rick\'s a
Headquarters Guy, and He Understands it All.

Deery: Matt, Have You Decided to Seek Psychological Help? Who Is the Ao
Who Issues the Suspension Cessation Orders? Is There a Delegation for
3715? The Delegation, If it Exists, Is Standardized out to the State
Directors. The State Director Then Has the Option to Delegate That ‑‑
Redelegate That Authority down To the Local Level. I Understand Nevada
Went Through That Pre ‑‑ Precisely That Question Here Just Shortly, a
Few Months Ago. What Policies Exist Linking Notices of Noncompliance
under 3715 to Notices of Noncompliance Under 3809? Same Delegation?
Appeal Rights? Et Cetera? This Is from Pete. Pete, If You Want to Call
up and Give Us a Little Bit of Background in That Question, Maybe We\'ll
Be Able to Answer it A Little Better. There Are Links in the Sense That
We\'re Probably Dealing with The Same Site, but 3715 Has Generally a
Separate Set of Tracks That it Runs On, Even Though it Deals with the
3809s. But If You Have Some More Specific Detail, Pete, That You Want to
Give Us, Give Us a Call. Matt?

Shumaker: Ok. Well, I Have a Fax in Here from Ridgecrest, and I\'m Not
‑‑ I Think ‑‑ Ooh, Ooh, Asbestos. That One Goes Away. No, Only Joking,
but it Isn\'t Relevant to this. It\'s from Another Issue. Not Having to
Do with Mining Claim Occupancy. Anyway, from Ridgecrest, They Scratched
out the Word Question And Circled Comment, and this Is Addressed to
Matt, and I Guess I\'m Supposed to Read This, and This Is: Knowing Linn
as Well As I Do, Linn Using Small Words Instead of Big Words May Slow
Him down. Linn Has the Wonderful Ability To Take a Short Story and Turn
Into it a Trilogy and It\'s Signed J. Hughes, Mike Hogan and Dave K. Do
You Know Any of These People?

Gum: Every One of Them.

Shumaker: Do You Think There Life Will Be Different When You Get Back?

Gum: Probably Not a Bit.

Shumaker: Also I Have One from What Appears to Be the Needles Resource
Area, and from the Appearance of This, it Would Seem That Needles Had
Some People in the Audience in Ransberg. Anyway, the Question Is, What
Happened to Your Hair, and Where Are Your Bib Overalls? It\'s Been a
Long Strange Trip. Done Any Back Flips Lately? Don\'t Have a Clue on
That One, But I\'ll Let it Go. I Understand I Have Another Fax Coming in
That Needs to Come out To the Podium, and We\'ll Deal With That as Soon
as it Gets Here. Which Is Another Way of Saying, We Need to Hear from
You. Now, this Just In\... This Is From Nevada and It\'s Address to Do
Matt and Rick. I Have Had the Required Training To Become a Cme, but I
Can\'t Find An, Expletive Deleted, Exam To Do. The District Will Also
Need a Copy of the Cash Manual with ‑‑ And Also Additional Handouts That
Were Not Included with the Original Training Material. And Thanks. Ok.
Your State Office Should Have a Copy of the Cash Manual, and in Ely I
Would Hope Your Haz‑mat People Would Have a Copy There, Considering Your
Mining Workload. You Might Want to Check with Them. As for the Required
Training to Become a Cme and You Can\'t Find An Exam to Work On, That\'s
a Continuing Problem for a Lot of People and I Know That Rick Has Made
Some Observations on That In the past.

Deery: If You Need an Exam to Work On, Get with Your Manager, Get with
Your Supervisor, and Have Them Make a Phone Call. If Nothing Else, Talk
with Rog Haskins in the Washington Office Who Has Charge of the Great
Galactic Plan Mandated by Congress, the Five‑year Plan, And it May Be
That Roger Can Come up with a Suitable Case for You to Work On. This Is
Not Difficult, If You Want To. Of Course, it Depends On, Is Your
Management Willing to Have You Go out of Town for a While? And If Not,
Well, So Be It.

Shumaker: at this Point I Would Like to Mention the Phone Lines Are Open
for Our Last Question And Answer Segment. If You Have a Question or
Comment for Our Panel, or for Anything That We\'ve Covered During this
Course, this Is a Really Good Time for You to Place Your Call, or If You
Would Like, You Can Send Us a Fax, and We Would like to Hear from You.
Anyway, I Understand That the Person That We Were Hoping to Talk to for
Privacy Act Clarification on Mineral Case Files Is Not Going to Be
Available. This Is a Really Complex Subject, and this May Not Be the
Best Forum to Cover It. I Would Recommend, Though, If You Do Have a
Question about What Can You Release and What You Can\'t Release, Your
Freedom Of Information Act Coordinator At Your Home Office Would
Probably Be the Best Person to Contact. Rick?

Deery: That\'s Exactly the Right Answer, Matt. We Have Foia Coordinators
in the Washington Office That If We\'re ‑‑ We Have a Question, Go Find
Them, Go Talk to Them. In Solid Minerals, We Have Pat Shehe and Then May
Bowman, Who Is Headquarters Folks, and Every Has a Counterpart in the
State Office. So Those Should Be the Folks You Talk To.

Shumaker: Looks like We\'re Not Getting a Lot of Calls In, We\'re Not
Getting a Lot of Faxes In, So I Would like to Take Some Closing
Observations from Each Of You and Then We\'re Probably Going to Dump out
for the Day. So, Mike, Anything to Say Before We Go?

Meyer: this Has Been an Interesting Experience for Me. I Hope it Has
Been for Others. If Anybody Has Any Questions They\'d like to Get Ahold
of Me In the Palm Springs Office about The Occupancy Trespass Operation,
Feel Free to Call Me.

Shumaker: Mike, It\'s a Good Point You Have Made There. It\'s Important
for Everyone to Realize That If You Have a Question That You Don\'t Ask
Today or Think about the Instant You Turn off the Television, and That
Happens a Lot, Each of Us Is Available for Questions and Answers. Just
Give Us a Call. Send Groupwise Questions, and We\'ll Do the Best We Can
to Get Back to You as Soon as We Can. Also, this Video Program Will
Eventually Packaged as a Self‑study Program. So If You\'re Not Watching
this Live, If You\'re Watching this in A Stack of Tapes, the Offer Is
Still Good, Give Us a Call. Scott?

Murrellwright: Well, I Just Want To Say to the Folks out There, After
Reviewing the Materials That I\'ve Put Forward in the Course There,
Those Are Only Partial Excerpts from Case Files. If I Wasn\'t Clear
Enough for You, Give Me a Call or Groupwise Me a Message and I\'ll Get
Back To You. I\'m Still Learning to Walk and Chew Gum at the Same Time
at This Podium. So, Thank You. Any Questions, Feel Free to Call.

Shumaker: Scott, I Know You Can Walk and Chew Gum at the Same Time. I
Have Seen You Do It. It\'s the Walk, Chew Gum and Talk At the Same Time
That\'s a Little Tough. Dennis?

Mclane: I Just Want to Say I Think We Have Provided an Adequate Set of
Regulations, an Adequate Set of Policies, an Adequate Set of Guidance,
as Well as All the Tools and Strategies We\'ve Given to You in This
Training Program and We Encourage You to Go Ahead and Use That Full Set
of Tools and That Full Said of Strategies, And We Understand That this
Kind Of Work Can Indeed Be Difficult, But it Depends upon Each and Every
One of You and Your Own Diligence and Your Own Creativity to Make
Successes Happen and to Help the Public Lands Be a Better Place by
Managing Uses and Occupancies.

Shumaker: Linn? Here Is Your Chance to Make a Short Story Long.

Gum: I Would like to Thank You For the Opportunity to Come out And Share
in this Training Process. I Also Would Encourage Those of You That Are
Involved in 3715 Program to Approach the Program From a Degree of
Commitment as Opposed to Just Mere Involvement. I Suppose If You Take a
Look at Your Breakfast Every Morning and You Look down and You See Those
Bacon and Eggs, You Can Fully Believe That That Pig Was Committed to
That Breakfast, Where That Chicken Was Just Involved with It. It\'s Kind
of Same Thing in 3715. Try to Hold Yourself at Arm\'s Length Away and
Not Become So Completely Impassioned and Emotional That You Just Can\'t
Operate, but I Will Say Also in Regard to That That Often Those Of Us
That Are Involved in this Type of Activity Are Going to Suffer an Awful
Lot of Criticism. They\'re Going to Want to Shoot That Messenger. What I
Tell to You Remember Is That Even Gandhi Had His Critics. So with That,
I\'ll Pass it onto Rick.

Shumaker: Well, Rick, What Have You Got to Say?

Deery: after That, There Is Darn Little to Say.

Shumaker: I Was Trying to Think Of a Good Comeback for You, Linn. Let\'s
Just Let That Go. What Can You Tell Us about When We Can See Some
Guidance ‑‑

Deery: Hopefully Here in the Next Couple of Weeks We Will Have the
Interim Guidance Through the Surname Process and Off to You Guys in the
Field. In Terms of Washington Support, Washington Took the Lead Back
When Our Director Had a Different Name in Building this Toolbox. We\'ve
Put it out There for You To Use. We Want You to Use It. We Encourage You
to Use It. We Want You to Understand That ‑‑ We Can\'t Say this Often
Enough, That this Is a Long‑standing Problem. The Case Law on this Goes
Back To Way Before the Turn of the Century. Now We Have Tools to Work
with It, but We\'re Going to Be Dealing with Things That Have Been There
for a Long Time. Solutions Are Not Going to Come Quickly. Solutions Are
Going to Be Contingent upon a Lot of Hard Work on Your Part, and You
Have To Go into this Recognizing That. You Also Have to Do, as Linn
Says, Sometimes Take a Step Back And Don\'t Let this Stuff Follow You
Home. 20 Years Ago When I Came to the Training Center, the Then Center
Director Was a Guy Named Paul Rigtrup, and He Gave Me and Our Class One
of the Soundest Pieces Of Advice I Have Ever Had, and He Made it Plain
to Us. He Said, Look, Folks, the Public Lands Are Not Your Children.
They\'re Not Your Family. They\'re Not Your Home. They\'re Part of Your
Job. When You Begin to Get Emotionally Involved in It, It\'s Time to
Step Back and Take a Deep Breath and Reconsider What You\'re Doing, and
I Give You That Same Advice That Paul Gave To Me Two Decades Ago, That
the Public Lands and These Cases Are Not Your Children. Don\'t Let Them
Ball You Up. But Just Also Keep in Mind to Get to a Point Where the Use
and Occupancy Program Would like to Be Is Going to Take Diligent Work by
Everybody in the Office, All the Ologists Got to Be Working on it and
You Got to Make Sure You Document Everything. Matt?

Shumaker: We Have a Question Coming In, and I\'ll Have it Here Up in a
Second. So Go Ahead ‑‑ What Was the Final Disposition of Those Mobile
Homes That Were Towed From BLM Lands?

Meyer: What Ended up Happened Was They Were in Such Bad Shape That We
Ended up ‑‑ the ‑‑ as Part of the Payment Back to the Tow Company, They
Ended up Taking the Trailers over as a Disposal for Us, Actually and
They Ended up Cutting Them up And Using Them as Fifth Wheel Trailers.
Apparently There Is a Market for That.

Shumaker: What Was the Total Cost of the Removal and Cleanup At Each of
Those Locations?

Meyer: to Kind of Break it Down, The Dumpsters Were Running Us About
\$100 Pick‑up and Take‑down Time and They Were Charging Us \$50 a Month
Just to Have Them, And Then When We Took Them to The Dump Themselves, I
Think We Had a Tonnage Fee of about \$200 On Each of Them. So Roughly I
Would Say \$500 Was What We Were Running on Each of One of Those 40‑yard
Dumpsters So the 60 Days We Had Them. So That Was a Pretty Good Deal.
And this Was Pick up and Take Down. It Was a Hands‑off Operation.

Shumaker: Even in Overall Cost, There Was Staff Time, You Had to Pay the
People from the Mobile Home Moving Company.

Meyer: Right. That Ran Us ‑‑ I Think We Had That for \$800. \$800 a
Trailer Was the Pick‑up, Take‑down and Storage Time.

Shumaker: Would it Be Safe to Say You Were Looking Around \$2500?

Meyer: I Think That Would Be Very Close.

Shumaker: That Gets Us to One of The Questions We Had Yesterday, Again,
the Assistant U.s. Attorney Won\'t Take Anything Under \$5,000, and
It\'s Good Example, it Doesn\'t Take Much to Get to \$5,000.

Meyer: the Other Side Was We Were Surprised How Cheap it Was To Do this.
That Was Almost ‑‑ the District Covered the Cost for Us, but it Was ‑‑ a
Minimal Cost When You Look at What We Had Involved There.

Shumaker: You Had a Great Advantage. I Know Where That Is. I Have Been
out There Around the Corner More Times than I Can Count and You\'re
Right on a Main Road, and You Are Within Probably an Eight‑mile Drive of
One of the Four Places in the United States That Builds Mobile Homes. So
There Is a Big Industry Around There That Could Deal With Them. Not
Everybody Is Going to Have That. If You\'re out in the Middle of Nevada
or in Oregon, It\'s Not Quite That Good. It Will Be a Lot More Money.
Ok. I Think That about Wraps it up For Our Mining Claim Use and
Occupancy Course. I Would like to Thank Everyone Who Called in and Sent
Us Faxes. We Appreciate Your Participation. We All Hope You Found the
Session Useful. I Would Especially like to Thank All the Panelists and
Instructors. I Hope Everybody Here That\'s Been Watching Has Found These
Last Two Days to Be Useful. All of Us Here, All of the Panelists, and
Linda Anderson, Hope That it Was Worth Your Time. These Pictures, Video
Clips and Visuals Appear on Your Screen at Just the Right Moment. The
Sound Is Good, and the Picture Is Clear. There\'s a Lot That Goes on
Behind the Scenes Here to Make These Broadcasts Look Seamless. We\'ve
Got a Studio Floor and It\'s Full of Camera Operators. We Have Phone
Screener. We Have a Control Room Full of People Making Sure You Get the
Best Quality Audio and Video at Just the Right Moment. All That Takes a
Lot of Preparation and Rehearsal. Unfortunately, It\'s Hard, Usually
Impossible, to Get the Instructors in this Field for ‑‑ Here for More
than Just the Telecourse. We Tried. We Did the Best We Could. Most of
the People Here I Could Get for Two Days, but I Could Only Get Them for
Two Days Once. We Handed the Training Center\'s Video Department a
Really Rough Draft Class, Another Way to Put It Is We Gave Them a Basket
Case. Inside of Two Days They Had Us Up and Running with What We Hope
Was a Professional Session. We Hope it Did You Some Good. The People
That Do the Work Here Behind the Scenes Rarely Get the Appreciation That
They Deserve. We Have a Whole Batch of NTC Employees That I Work Here
with Every Day and Some Folks on Contract That I See Every Year Or So
Whose Names I Don\'t Have. But I Would Especially like to Thank Ron, Ken
Sparks, Bill Deegan, Especially like to Thank Kim Menning for Helping
Scott Murrellwright Get Everything Worked out and Understand How The
Technology Works and That Was a Beautiful Job. Most of All, No Though, I
Would Like to Thank Chip Calamaio for Keeping it All Together under a
Director\'s Nightmare. I must Be a Director\'s Nightmare, but Still He
Makes Us All Look Good. Thanks, Chip. And over There on the Elmo, I\'ve
Got an Award for Everybody. You and Your Team Are Number 1 With Us and
You Always Will Be. We Really Appreciate It. Anyway, I\'d like to Remind
Our Downlink Coordinators to Have All Viewers Sign the Attendance Roster
and Fax it Back to NTC Immediately after Today\'s Show. Everyone Should
Also Complete The Course Evaluation Form Which Was Provided with Your
Viewer Packet. Fax the Evaluations to NTC or Mail Them to Me Directly. I
Got a Bunch of Them from Yesterday, and I Really Appreciate It. It\'s
Good to Know That There Are People out There Watching, and We Hope
You\'re Benefitting. If You Have Any Additional Questions about What
We\'ve Presented in the past Two Days, Please Contact Any of the
Instructors or Panelists. I Would Also like to Mention Some Upcoming NTC
Satellite Events. On October 1st, an Interactive Telecourse Will Be Held
to Discuss the New Nepa Categorical Exclusions List Developed by BLM And
the Forest Service. A Program on October 30th Will Discuss Changes in
the Oil & Gas Policy. This May Be of Particular Interest to People in
Your Office Who Work in Fluid Minerals. And on November 19th, NTC Will
Broadcast a Seminar as Part of The Second International Conference on
Natural Resources And Cultural Heritage. This Interactive Telecast,
Which Will Also Be Transmitted to Central and South America, Will Be
Simulcast in Spanish. To Help Your Office Participate In Future NTC
Broadcasts, See The BLM Satellite Downlink Guide Or Visit the NTC Home
Page on The World Wide Web. I Have Seen That and It\'s a Great Place to
Visit. NTC\'s Internet Address Is www.ntc.blm.gov. Transcripts of this
Program and Other NTC Broadcasts Are Available on the NTC Home Page. For
More Information on Upcoming Distance Learning Events and Traditional
Courses, Can You Call NTC at 602‑906‑5500. Or Visit Our Home Page. I\'d
like to Thank All for Our ‑‑ All of Our Panelists and Instructors And,
Once Again, You Did a Great Job. We Appreciate Your Being Here. So, So
Long, and Thanks for Watching!