Use and Occupancy Under the Mining Laws
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43 CFR 3715 Use and Occupancy Under The Mining Laws
Use and Occupancy General Information
The purpose of this subpart is to manage the use and occupancy of the public lands for the development of locatable mineral deposits by limiting such use or occupancy to that which is reasonably incident. The BLM will prevent abuse of the public lands while recognizing valid rights and uses under the Mining Law of 1872 (30 U.S.C. 22 et seq.) and related laws governing the public lands, regardless of when those rights were created. The BLM will take appropriate action to eliminate invalid uses, including unauthorized residential occupancy of the public lands.
a. Activities Required for Use of Public Lands
Under §3715.2, in order to occupy the public lands under the mining laws for more than 14 calendar days in any 90-day period within a 25-mile radius of the initially occupied site, the occupant must be engaged in certain activities. These activities must:
- Be reasonably incident - Reasonably incident means the statutory standard "prospecting, mining, or processing operations and uses reasonably incident thereto" (30 U.S.C. 612). It is a shortened version of the statutory standard. It includes those actions or expenditures of labor and resources by a person of ordinary prudence to prospect, explore, define, develop, mine, or beneficiate a valuable mineral deposit using methods, structures, and equipment appropriate to the geological terrain, mineral deposit, and stage of development and reasonably related activities.
Unnecessary or undue degradation, as applied to unauthorized uses, means those activities that are not reasonably incident and are not authorized under any other applicable law or regulation. As applied to authorized uses, the term is used as defined in 43 CFR §3802.0–5 and §3809.0–5.
- Constitute substantially regular work - Substantially regular work means work on, or that substantially and directly benefits, a mineral property, including nearby properties under the control of the claimant/operator. The work must be associated with the search for and development of mineral deposits or the processing of ores. It includes active and continuing exploration, mining, and beneficiation or processing of ores. It may also include assembly or maintenance of equipment, work on physical improvements, and procurement of supplies incidental to activities meeting the conditions of §3715.2 and §3715.2–1. It may also include off-site trips associated with these activities. The term also includes a seasonal, but recurring, work program.
- Be reasonably calculated to lead to the extraction and beneficiation of minerals;
- Involve observable on-the-ground activity that the BLM may verify under §3715.7;
- Use appropriate equipment that is presently operable, subject to the need for reasonable assembly, maintenance, repair, or fabrication of replacement parts; and
- In addition to the requirements specified in §3715.2, the occupancy must involve one or more of the following:
- protecting exposed, concentrated, or otherwise accessible valuable minerals from theft or loss;
- protecting from theft or loss appropriate, operable equipment which is regularly used, is not readily portable, and cannot be protected by means other than occupancy;
- protecting the public from appropriate, operable equipment which is regularly used, is not readily portable, and, if left unattended, creates a hazard to public safety;
- protecting the public from surface uses, workings, or improvements which, if left unattended, create a hazard to public safety; or
- being located in an area so isolated or lacking in physical access as to require the mining claimant, operator, or workers to remain on site in order to work a full shift of a usual and customary length. A full shift is ordinarily 8 hours and does not include travel time to the site from a community or area in which housing may be obtained.
If the need for a watchman or caretaker to occupy the public lands to protect valuable or hazardous property, equipment, or workings, is asserted, it must be shown that the need for the occupancy is both reasonably incident and continual. It must be shown that a watchman or caretaker is required to be present either whenever the operation is not active or whenever workers are not present on the site.
The BLM may allow temporary occupancy at a single site to extend beyond the 14-day period described in §3715.1 if it is needed to secure the site beyond 14 days through the use of a watchman as allowed by §3715.2–2 and the claimant/operator has begun consultation with the BLM under §3715.3 If the BLM decides not to concur in the occupancy, the temporary occupancy must stop.
The following table has been included for use in identifying the requirements for occupancy.
|Table 2 - Consultation Requirements|
|If a use that would involve occupancy is proposed||Then.|
|Under a Plan of Operations or a modification submitted under 43 CFR §3802 or §3809||Include in the proposed Plan of Operations the materials required by §3715.3–2 describing any proposed occupancy for BLM review concurrently with review of the Plan of Operation. BLM will determine whether the requirements of occupancy, together with its decision to approve or modify the Plan have been complied with.|
|Under the Notice provisions of 43 CFR §3809||Submit the materials required by §3715.3–2 together with the materials submitted under 43 CFR §3809.1–3 for BLM review concurrently with its review of the proposed activity. Any activities in the Notice that do not involve occupancy and are reasonably incident may proceed in accordance with 43 CFR §3809.|
|"Casual use" under 43 CFR 3809.1–2 or does not require a Plan of operations under 43 CFR §3802.1–2 and §3809.1–4 or a Notice under 43 CFR §3809.1–3||Consultation with the BLM and submittal of the materials is required by §3715.3–2 to BLM. Any casual use activities that do not involve occupancy and are reasonably incident may proceed in accordance with 43 CFR §3809.|
|Or enclosures, fences, gates, or signs intended to exclude the general public||Are subject to the consultation provisions of this subpart and materials required by §3715.3–2 must be submitted to the BLM.|
- You must not begin occupancy until:
- 43 CFR §3715 and §3802 or §3809 have been complied with and the BLM has completed its review and made the required determinations and
- all Federal, State, and local mining, reclamation, and waste disposal permits, approvals, or other authorizations for the particular use or occupancy have been obtained by the claimant/operator.
b. Information Required to be Submitted
The following must be included in a Plan, Notice, or letter.
- A detailed map, preferably at least 1:24,000 or smaller scale, that identifies the site and the placement of the items specified in paragraphs (c), (d), and (e) below and a written description of the proposed occupancy that describes in detail:
- how the proposed occupancy is reasonably incident;
- how the proposed occupancy meets the conditions specified in §3715.2 and §3715.2–1;
- the location of temporary or permanent structures for occupancy;
- the location of and need for enclosures, fences, gates, and signs intended to exclude the general public;
- the location of reasonable public use, passage, or access routes through or around the area to adjacent public lands; and
- the estimated period of use of the structures, enclosures, fences, gates, and signs, as well as the schedule for removal and reclamation when operations end.
c. Time Frame for Review and Enforcement
The BLM will review all proposed occupancies and all proposed enclosures, fences, gates, or signs intended to exclude the general public to determine if the proposed occupancy or use will conform to the provisions of §3715.2, §3715.2–1, and §3715.5. The BLM will complete its review of a proposed occupancy not involving a Mining Plan within 30 business days of receipt of all required materials, unless it concludes that the determination cannot be made, until:
- 30 business days after it prepares necessary environmental documents and
- 30 business days after it has complied with section 106 of the National Historic Preservation Act, Section 7 of the Endangered Species Act, and/or other applicable statutes.
Occupancy must not begin until concurrence has been received from the BLM, even though a Mining Notice, a Mining Plan, an amended occupancy proposal, or an appeal has been submitted.
If at any time the BLM determines that the described use or occupancy is not reasonably incident and the continued presence of the use or occupancy is a threat to health, safety, or the environment; the BLM will order an immediate, temporary suspension of activities under §3715.7–1(a). If the determination is made that a part or all of the occupancy is not reasonably incident, but does not endanger health, safety, or the environment; the BLM may issue a temporary or permanent cessation order under §3715.7–1(b).
d. Existing Occupancies
- The BLM will visit the site during the normal course of inspection to obtain the information described in §3715.3–2. After the visit, the BLM will make a determination of concurrence or non-concurrence.
- The claimant/operator must provide the information described in §3715.3–2 to the BLM either in writing or verbally during a site visit by BLM field staff.
If written notice required in §3715.4 is not provided, the occupant will be subject to the enforcement actions of §3715.7–1, the civil remedies of §3715.7–2, and the criminal penalties of §3715.8.
If the BLM determines that all or any part of an existing use or occupancy is not reasonably incident:
- the BLM may order a suspension or cessation of all or part of the use or occupancy under §3715.7–1;
- the BLM may order the land to be reclaimed to its satisfaction and specify a reasonable time for completion of reclamation under 43 CFR part 3800; and
- the BLM may order the occupant to apply within 30 days after the date of notice from the BLM for appropriate authorization under the regulations in 43 CFR Group 2900.