Title
43: Public Lands: Interior
Subpart 3715—Use and Occupancy Under the Mining Laws
Authority: 18 U.S.C. 1001, 3571 et seq .; 30 U.S.C. 22, 42, 612; 43 U.S.C. 1061 et seq ., 1201, 1457, 1732 (b) and (c), 1733 (a) and (g).
Source: 61 FR 37125, July 16, 1996, unless otherwise noted.
(a) Purpose. 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 Bureau of Land Management (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. BLM will take appropriate action to eliminate invalid uses, including unauthorized residential occupancy of the public lands.
(b) Scope. This subpart applies to public lands BLM administers. They do not apply to state or private lands in which the mineral estate has been reserved to the United States. They do not apply to Federal lands administered by other Federal agencies, even though those lands may be subject to the operation of the mining laws.
(c) This subpart does not impair the right of any person to engage in recreational activities or any other authorized activity on public lands BLM administers.
The authorities for this subpart are 18 U.S.C. 1001, 3571 et seq .; 30 U.S.C. 22, 42, 612; 43 U.S.C. 1061 et seq ., 1201, 1457, 1732 (b) and (c), 1733 (a) and (g).
As used in this subpart the term:
Mining laws means all laws that apply to mining of locatable minerals on public lands and which make public lands available for development of locatable minerals. This includes, but is not limited to, the general authorities relating to mining of locatable minerals or to the public lands on which this subpart is based and case law which interprets those authorities.
Mining operations means all functions, work, facilities, and activities reasonably incident to mining or processing of mineral deposits. It includes building roads and other means of access to a mining claim or millsite on public lands.
Occupancy means full or part-time residence on the public lands. It also means activities that involve residence; the construction, presence, or maintenance of temporary or permanent structures that may be used for such purposes; or the use of a watchman or caretaker for the purpose of monitoring activities. Residence or structures include, but are not limited to, barriers to access, fences, tents, motor homes, trailers, cabins, houses, buildings, and storage of equipment or supplies.
Permanent structure means a structure fixed to the ground by any of the various types of foundations, slabs, piers, poles, or other means allowed by building codes. The term also includes a structure placed on the ground that lacks foundations, slabs, piers, or poles, and that can only be moved through disassembly into its component parts or by techniques commonly used in house moving. The term does not apply to tents or lean-tos.
Public lands means lands open to the operation of the mining laws which BLM administers, including lands covered by unpatented mining claims or millsites.
Prospecting or exploration means the search for mineral deposits by geological, geophysical, geochemical, or other techniques. It also includes, but is not limited to, sampling, drilling, or developing surface or underground workings to evaluate the type, extent, quantity, or quality of mineral values present.
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.
Substantially regular work means work on, or that substantially and directly benefits, a mineral property, including nearby properties under your control. 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.
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.
[61 FR 37125, July 16, 1996, as amended at 62 FR 59822, Nov. 5, 1997]
(a) BLM has submitted to the Office of Management and Budget the information collection requirements contained in this subpart under 44 U.S.C. 3507 and the Paperwork Reduction Act of 1995 and assigned clearance number 1004–0169. BLM collects the information so that it may manage use and occupancy of public lands under the mining laws by prohibiting unauthorized uses and occupancies. A response to BLM is mandatory and required to obtain the benefit of occupying the public lands for reasonably incident activities.
(b) BLM estimates the public reporting burden for this information to average two hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer (DW–110), Bureau of Land Management, Building 50, Denver Federal Center, Denver, Colorado 80225–0047, and the Office of Management and Budget, Paperwork Reduction Project, 1004–0169, Washington, DC 20503.
To determine if the regulations in this subpart apply to your activities, refer to Table 1 in this section.
Table 1
Applicability of this subpart |
|
If your proposed use of the public lands— |
Then— |
Includes occupancy and is “reasonably incident” as defined by this subpart |
The provisions of this subpart apply to you. You must seek concurrence from BLM before beginning this use and comply with all provisions of this subpart. |
Involves the placement, construction, or maintenance of enclosures, gates, fences, or signs |
The provisions of this subpart apply to you. You must seek concurrence from BLM before beginning this use and comply with all provisions of this subpart. |
Is reasonably incident, but does not involve occupancy |
The provisions of this subpart do not apply to you, except for §§3715.4, 3715.5 and 3715.7. You are subject to the applicable regulations in 43 CFR part 3800. |
Is not reasonably incident (involving rights-of-way, for example), but may be allowed under the public land laws |
The occupancy consultation provisions of this subpart do not apply to you. Your use is not allowed under this subpart. You must seek authorization under 43 CFR Group 2900. |
Is not allowed under the public land laws, the mining laws, the mineral leasing laws, or other applicable laws |
Your use is prohibited. You must not begin or continue unauthorized uses. |
Involves occupancy of a site, or any subsequent site within a 25-mile radius of the initially occupied site, for 14 days or less in any 90-day period |
The provisions of this subpart do not apply to you. Refer to the applicable regulations in 43 CFR part 8360 and pertinent State Director supplementary rules. 43 CFR part 8360 will not otherwise apply to a reasonably incident use or occupancy that this subpart allows. |
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, you must be engaged in certain activities. Those activities that are the reason for your occupancy must:
(a) Be reasonably incident;
(b) Constitute substantially regular work;
(c) Be reasonably calculated to lead to the extraction and beneficiation of minerals;
(d) Involve observable on-the-ground activity that BLM may verify under §3715.7; and
(e) Use appropriate equipment that is presently operable, subject to the need for reasonable assembly, maintenance, repair or fabrication of replacement parts.
In addition to the requirements specified in §3715.2, your occupancy must involve one or more of the following:
(a) Protecting exposed, concentrated or otherwise accessible valuable minerals from theft or loss;
(b) 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;
(c) 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;
(d) Protecting the public from surface uses, workings, or improvements which, if left unattended, create a hazard to public safety; or
(e) 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 you assert the need for a watchman or caretaker to occupy the public lands to protect valuable or hazardous property, equipment, or workings, you must show that the need for the occupancy is both reasonably incident and continual. You must show that a watchman or caretaker is required to be present either whenever the operation is not active or whenever you or your workers are not present on the site.
BLM may allow temporary occupancy at a single site to extend beyond the 14-day period described in §3715.1 if you need to secure the site beyond 14 days through the use of a watchman as allowed by §3715.2–2, and you have begun consultation with BLM under §3715.3. If BLM decides not to concur in the occupancy, the temporary occupancy must stop.
Before beginning occupancy, you must consult with BLM about the requirements of this subpart. See Table 2 in this section.
Table 2
Consultation requirements |
|
If you are proposing a use that would involve occupancy |
Then. |
Under a plan of operations or a modification submitted under 43 CFR part 3800, subpart 3802 or subpart 3809 |
You must 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 you have complied with the requirements of this subpart together with its decision approving or modifying the plan. |
Under the notice provisions of 43 CFR part 3800, subpart 3809 |
You must 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 part 3800, subpart 3809. |
And is a “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 |
You are subject to the consultation provisions of this subpart and must submit the materials 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 part 3800, subpart 3809. |
Or enclosures, fences, gates, or signs intended to exclude the general public |
You are subject to the consultation provisions of this subpart and must submit the materials required by §3715.3–2 to BLM. |
You must not begin occupancy until—
(a) You have complied with either 43 CFR part 3800, subpart 3802 or 3809 and this subpart, and BLM has completed its review and made the required determinations under the applicable subparts, and
(b) You have obtained all federal, state and local mining, reclamation, and waste disposal permits, approvals, or other authorizations for the particular use or occupancy as required under this subpart.
You must give BLM a detailed map that identifies the site and the placement of the items specified in paragraphs (c), (d), and (e) of this section, and a written description of the proposed occupancy that describes in detail:
(a) How the proposed occupancy is reasonably incident;
(b) How the proposed occupancy meets the conditions specified in §3715.2 and §3715.2–1;
(c) Where you will place temporary or permanent structures for occupancy;
(d) The location of and reason you need enclosures, fences, gates, and signs intended to exclude the general public;
(e) The location of reasonable public passage or access routes through or around the area to adjacent public lands; and
(f) 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.
BLM will review all proposed occupancies and all proposed enclosures, fences, gates, or signs intended to exclude the general public to determine if your proposed occupancy or use will conform to the provisions of §§3715.2, 3715.2–1 and 3715.5. BLM will complete its review of a proposed occupancy not involving a plan of operations within 30 business days of receipt of the materials, unless it concludes that the determination cannot be made until:
(a) 30 business days after it prepares necessary environmental documents, and
(b) 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, if applicable.
At the conclusion of the review, BLM will make a written determination of concurrence or non-concurrence, and will send it to you. For operations conducted under a plan of operations, BLM will include this written determination in the decision that approves, modifies, or rejects the plan.
(a) BLM will include in each determination of concurrence a statement requiring you to continue to comply with §§3715.2, 3715.2–1 and 3715.5.
(b) BLM will specify in each determination of non-concurrence how the proposed occupancy fails to meet the conditions of §3715.2, §3715.2–1 or §3715.5, and will provide you an opportunity to modify the proposed occupancy or appeal the determination under §3715.9.
If you have not received concurrence from BLM, you must not begin occupancy even though you have submitted, or plan to submit, an amended occupancy proposal or an appeal.
(a) By August 18, 1997, all existing uses and occupancies must meet the applicable requirements of this subpart. If not, BLM will either issue you a notice of noncompliance or order any existing use or occupancy failing to meet the requirements of this subpart to suspend or cease under §3715.7–1. BLM will also order you to reclaim the land under 43 CFR part 3800, subpart 3802 or 3809 to BLM's satisfaction within a specified, reasonable time, unless otherwise expressly authorized.
(b) If you are occupying the public lands under the mining laws on August 15, 1996, you may continue your occupancy for one year after that date, without being subject to the procedures this subpart imposes, if:
(1) You notify BLM by October 15, 1996 of the existence of the occupancy using a format specified by BLM; and
(2) BLM has no pending trespass action against you concerning your occupancy.
(c) The one-year grace period provided in paragraph (b) of this section will not apply if at any time BLM determines that your 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. In this situation, BLM will order an immediate temporary suspension of activities under §3715.7–1(a).
(d) If you have no existing occupancies, but are engaged in uses of the public lands under the mining law, you are subject to the standards in §3715.5. BLM will determine if your existing uses comply with those standards during normal inspection visits to the area and during BLM review of notices and plans of operations filed under 43 CFR part 3800.
(a) BLM will visit your site during the normal course of inspection to obtain the information described in §3715.3–2. After the visit, BLM will make a determination of concurrence or non-concurrence.
(b) You must provide the information described in §3715.3–2 to BLM. You may provide it either in writing or verbally during a site visit by BLM field staff.
If you do not provide the written notice required in §3715.4, you 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 BLM determines that all or any part of your existing use or occupancy is not reasonably incident:
(a) BLM may order a suspension or cessation of all or part of the use or occupancy under §3715.7–1;
(b) 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
(c) BLM may order you to apply within 30 days after the date of notice from BLM for appropriate authorization under the regulations in 43 CFR Group 2900.
BLM may defer a determination of concurrence or non-concurrence with your occupancy until the underlying fee simple title to the land has been finally determined by the Department of the Interior. During this time, your existing occupancy may continue, subject to §3715.5(a).
(a) Your use or occupancy must be reasonably incident. In all uses and occupancies, you must prevent or avoid “unnecessary or undue degradation” of the public lands and resources.
(b) Your uses must conform to all applicable federal and state environmental standards and you must have obtained all required permits before beginning, as required under 43 CFR part 3800. This means getting permits and authorizations and meeting standards required by state and federal law, including, but not limited to, the Clean Water Act (33 U.S.C. 1251 et seq .), Clean Air Act (42 U.S.C. 7401 et seq .), and the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq .), as required under 43 CFR part 3800.
(c) Your occupancies must conform to all applicable federal and state environmental standards and you must have obtained all required permits before beginning, as required under this subpart and 43 CFR part 3800. This means getting permits and authorizations and meeting standards required by state and federal law, including, but not limited to, the Clean Water Act (33 U.S.C. 1251 et seq .), Clean Air Act (42 U.S.C. 7401 et seq .), and the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq .), as required under this subpart and 43 CFR part 3800.
(d) If your prospecting or exploration activities involve only surface activities, you must not place permanent structures on the public lands. Any temporary structures you place on the public lands during prospecting or exploration will be allowed only for the duration of the activities, unless BLM expressly and in writing allows them to remain longer. If your prospecting or exploration activities involve subsurface activities, you may place permanent structures on the public lands, if BLM concurs.
(e) All permanent and temporary structures you place on the public lands must conform with the applicable state or local building, fire, and electrical codes, and occupational safety and health and mine safety standards. If state or local codes require, you must obtain a certificate of occupancy or its equivalent before you begin use or occupancy involving permanent structures. If state or local law requires, you must also acquire appropriate sewerage and sanitation permits before the occupancy or use of a permanent structure placed on the public lands.
Unless BLM expressly allows them in writing to remain on the public lands, you must remove all permanent structures, temporary structures, material, equipment, or other personal property placed on the public lands during authorized use or occupancy under this subpart. You have 90 days after your operations end to remove these items. If BLM concurs in writing, this provision will not apply to seasonal operations that are temporarily suspended for less than one year and expected to continue during the next operating season or to operations that are suspended for no longer than one year due to market or labor conditions.
Any property you leave on the public lands beyond the 90-day period described in §3715.5–1 becomes property of the United States and is subject to removal and disposition at BLM's discretion consistent with applicable laws and regulations. You are liable for the costs BLM incurs in removing and disposing of the property.
Except where other applicable laws or regulations allow, BLM prohibits the following:
(a) Placing, constructing, maintaining or using residences or structures for occupancy not meeting:
(1) The conditions of occupancy under §§3715.2 or 3715.2–1; or
(2) Any of the standards of occupancy under §3715.5;
(b) Beginning occupancy before the filing, review, and approval or modification of a plan of operation as required under 43 CFR part 3800, subparts 3802 or 3809;
(c) Beginning occupancy before consultation with BLM as required by §3715.3 for activities that do not require a plan of operations under 43 CFR part 3800, subpart 3802 or that are defined as casual use or notice activities under 43 CFR part 3800, subpart 3809;
(d) Beginning occupancy without receiving a determination of concurrence because the proposed occupancy or fencing will not conform to the provisions of §3715.2, §3715.2–1 or §3715.5;
(e) Not complying with any order issued under this subpart within the time frames the order provides;
(f) Preventing or obstructing free passage or transit over or through the public lands by force, threats, or intimidation; provided, however, that reasonable security and safety measures in accordance with this subpart are allowed;
(g) Placing, constructing, or maintaining enclosures, gates, or fences, or signs intended to exclude the general public, without BLM's concurrence;
(h) Causing a fire or safety hazard or creating a public nuisance;
(i) Not complying with the notification and other requirements under §3715.4 relating to an existing occupancy; and
(j) Conducting activities on the public lands that are not reasonably incident, including, but not limited to: non-mining related habitation, cultivation, animal maintenance or pasturage, and development of small trade or manufacturing concerns; storage, treatment, processing, or disposal of non-mineral, hazardous or toxic materials or waste that are generated elsewhere and brought onto the public lands; recycling or reprocessing of manufactured material such as scrap electronic parts, appliances, photographic film, and chemicals; searching for buried treasure, treasure trove or archaeological specimens; operating hobby and curio shops; cafes; tourist stands; and hunting and fishing camps.
(a) BLM field staff is authorized to physically inspect all structures, equipment, workings, and uses located on the public lands. The inspection may include verification of the nature of your use and occupancy to ensure that your use or occupancy is, or continues to be, reasonably incident and in compliance with §§3715.2, 3715.2–1, 3715.4–1 and 3715.5.
(b) BLM will not inspect the inside of structures used solely for residential purposes, unless an occupant or a court of competent jurisdiction gives permission.
BLM has four types of orders that it can issue depending on the circumstances:
(a) Immediate suspension. (1) BLM may order an immediate, temporary suspension of all or any part of your use or occupancy if:
(i) All or part of your use or occupancy is not reasonably incident or is not in compliance with §§3715.2, 3715.2–1, 3715.3–1(b), 3715.5 or 3715.5–1, and
(ii) an immediate, temporary suspension is necessary to protect health, safety or the environment.
(2) BLM will presume that health, safety or the environment are at risk and will order your use or occupancy to be immediately and temporarily suspended if:
(i) You are conducting an occupancy under a determination of concurrence under this section; and
(ii) You fail at any time to meet any of the standards in §3715.3–1(b) or §3715.5(b), (c), or (e).
(3) The suspension order will describe—
(i) How you are failing or have failed to comply with the requirements of this subpart; and
(ii) The actions, in addition to suspension of the use or occupancy, that you must take to correct the noncompliance and the time by which you must suspend the use or occupancy. It will also describe the time, not to exceed 30 days, within which you must complete corrective action.
(4) The suspension order will not be stayed by an appeal.
(b) Cessation order. (1) BLM may order a temporary or permanent cessation of all or any part of your use or occupancy if:
(i) All or any part of your use or occupancy is not reasonably incident but does not endanger health, safety or the environment, to the extent it is not reasonably incident;
(ii) You fail to timely comply with a notice of noncompliance issued under paragraph (c) of this section;
(iii) You fail to timely comply with an order issued under paragraph (d) of this section; or
(iv) You fail to take corrective action during a temporary suspension ordered under paragraph (a) of this section.
(2) The cessation order will describe—
(i) The ways in which your use or occupancy is not reasonably incident; is in violation of a notice of noncompliance issued under paragraph (c) of this section; or is in violation of an order issued under paragraphs (a) or (d) of this section, as appropriate;
(ii) The actions, in addition to cessation of the use or occupancy, that you must take to correct the noncompliance;
(iii) The time by which you must cease the use or occupancy, not to exceed 30 days from the date the Interior Board of Land Appeals affirms BLM's order; and
(iv) The length of the cessation.
(c) Notice of noncompliance. (1) If your use or occupancy is not in compliance with any requirements of this subpart, and BLM has not invoked paragraph (a) of this section, BLM will issue an order that describes—
(i) How you are failing or have failed to comply with the requirements of this subpart;
(ii) The actions that you must take to correct the noncompliance and the time, not to exceed 30 days, within which you must start corrective action; and
(iii) The time within which you must complete corrective action.
(2) If you do not start and complete corrective action within the time allowed, BLM may order an immediate suspension under paragraph (a) of this section, if necessary, or cessation of the use or occupancy under paragraph (b) of this section.
(d) Other. If you are conducting an activity that is not reasonably incident but may be authorized under 43 CFR Group 2900 or 8300, or, as to sites in Alaska, 43 CFR part 2560, BLM may order you to apply within 30 days from the date you receive the order for authorization under the listed regulations.
[61 FR 37125, July 16, 1996, as amended at 62 FR 59822, Nov. 5, 1997]
If you do not comply with a BLM order issued under §3715.7–1, the Department of the Interior may request the United States Attorney to institute a civil action in United States District Court for an injunction or order to prevent you from using or occupying the public lands in violation of the regulations of this subpart. This relief may be in addition to the enforcement actions described in §3715.7–1 and the penalties described in §3715.8.
The penalties for individuals and organizations are as follows:
(a) Individuals. If you knowingly and willfully violate the requirements of this subpart, you may be subject to arrest and trial under section 303(a) of FLPMA (43 U.S.C. 1733(a)) and/or section 4 of the Unlawful Occupancy and Inclosures of Public Lands Act (43 U.S.C. 1064). If you are convicted, you will be subject to a fine of not more than $100,000 or the alternative fine provided for in the applicable provisions of 18 U.S.C. 3571, or imprisonment not to exceed 12 months, or both, for each offense.
(b) Organizations. If an organization or corporation knowingly or willfully violates the requirements of this subpart, it is subject to trial and, if convicted, will be subject to a fine of not more than $200,000, or the alternative fine provided for in the applicable provisions of 18 U.S.C. 3571.
You are subject to arrest and trial before a United States District Court if, in any matter under this subpart, you knowingly and willfully falsify, conceal or cover up by any trick, scheme or device a material fact, or make any false, fictitious or fraudulent statements or representations, or make or use any false writings or document knowing the same to contain any false, fictitious or fraudulent statement or entry. If you are convicted, you will be fined not more than $250,000 or the alternative fine provided for in the applicable provisions of 18 U.S.C. 3571, or imprisoned not more than 5 years, or both.
If you are adversely affected by a BLM decision, order or determination made under this subpart, you may appeal the decision, order or determination to the Interior Board of Land Appeals (IBLA) under the provisions of 43 CFR part 4.
(a) An appeal to IBLA does not suspend an order requiring an immediate, temporary suspension of occupancy issued under §3715.7–1(a) before the appeal or while it is pending. In this case, the provisions of 43 CFR 4.21(a) do not apply.
(b) The provisions of 43 CFR 4.21(a) apply to all other BLM decisions, orders or determinations under this subpart.
| File Type | application/msword |
| Author | jesonnem |
| Last Modified By | jesonnem |
| File Modified | 2011-05-11 |
| File Created | 2011-05-11 |