[Audit Report on Occupancy Trespass Resolution, Bureau of Land Management]
[From the U.S. Government Printing Office, www.gpo.gov]

Report No. 96-I-1265

Title: Audit Report on Occupancy Trespass Resolution, Bureau of
       Land Management

Date: September 30, 1996

                  **********DISCLAIMER**********

This file contains an ASCII representation of an OIG report.  No attempt has been made to display
graphic images or illustrations.  Some tables may be included, but may not resemble those in the
printed version.

A printed copy of this report may be obtained by referring to the PDF file or by calling the Office of
Inspector General, Logistical Services Branch at (202) 219-3840.
                  ******************************

United States Department of the Interior

OFFICE OF INSPECTOR GENERAL
 Washington, D.C. 20240

MEMORANDUM

TO:                 The Secretary

FROM:               Wilma A. Lewis
     Inspector General

SUBJECT SUMMARY:    Final Audit Report for Your Information - "Occupancy
     Trespass Resolution, Bureau of Land Management"
     (NO. 96-I-1265)

Attached for your information is a copy of the subject final audit report. The objective of the
audit was to determine the effectiveness of the Bureau of Land Management's policies and
procedures for resolving occupancy trespass.

We concluded that four of the five Bureau of Land Management resource areas visited were
not actively resolving occupancy trespass cases, including occupancy trespass on unpatented
mining claims. During fiscal years 1993 and 1994, the four resource areas had identified only
10 and resolved only 14 occupancy trespass cases out of a backlog of over 160 such cases.
The Resource Area Managers stated that resolution of occupancy trespass was assigned a low
priority because of the cumbersome and costly processes required for resolution, both under
the Federal Land Policy and Management Act and Bureau regulations implementing the
Surface Resources Act; the concern for the safety of employees involved in trespass cases;
and the need to concentrate on higher priority activities. In contrast, the Folsom Resource
Area, which had assigned a high priority to resolving occupancy trespass, had identified and
recorded 88 new cases of trespass and resolved 107 cases during the audit period. Based on
our review, we attributed the success of the Folsom Resource Area to the diligence and
commitment of the Resource Area Manager and his staff and their willingness to pursue a
combination of methods, including cooperation with local officials and the U.S. Attorney's
Office, in resolving occupancy trespass cases.

The Bureau concurred with our recommendations pertaining to regulations for the unlawful
use and occupancy of unpatented mining claims by publishing a final rule on this issue. It also
concurred with our recommendation to instruct field personnel to work with local law
enforcement agencies regarding threats of violence to Bureau employees. However, the
Bureau did not concur with our recommendations relating to the resolution of existing
trespass cases and the seeking of appropriate legislative changes to reduce, from 12 months
to 6 months, the potential prison sentences for occupancy trespass to allow U.S. District
Court judges or U.S. Magistrate judges (with the consent of the defendant) to decide
occupancy trespass cases, Based on the response, we revised two recommendations and
requested that the Bureau consider the revised recommendations.

If you have any questions concerning this matter, please contact me at (202) 208-5745 or Mr.
Robert J. Williams, Acting Assistant Inspector General for Audits, at (202) 208-4252.

Attachment


                    
W-IN-BLM-001-95  I

United States Department of the Interior
OFFICE OF INSPECTOR GENERAL
Washington, D.C. 20240

Memorandum

To:  Assistant Secretary - Land and Minerals Management

From:     Robert J. Williams
     Acting Asssistant Inspector General for Audits

Subject: Audit Report on Occupancy Trespass Resolution, Bureau of Land
Management (No. 96-I-1265)

This report presents the results of our audit of occupancy trespass on lands managed
by the Bureau of Land Management. Our audit objective was to determine the
effectiveness of the Bureau's policies and procedures for resolving occupancy
trespass.

We found that of the five resource areas visited, only the Folsom Resource Area was
actively resolving occupancy trespass cases. During the period of our audit, fiscal
years 1993 and 1994, the Resource Area had identified and recorded 88 new cases
of trespass and resolved 107 cases. Resource Area staff attributed their success to
the commitment of the Area Manager, who made occupancy trespass resolution a
high priority and assigned responsibility for resolving trespass cases to specific staff.
However, the Barstow, Ridgecrest, Ashland, and Grants Pass Resource Areas did not
assign a high priority to resolving occupancy trespass and were not systematically
identifying, recording, and resolving such cases. For fiscal years 1993 and 1994, these
four resource areas had identified only 10 occupancy trespass cases and resolved only
14 cases.

The Area Managers stated that they assigned a low priority to resolving occupancy
trespass, in part, because of the cumbersome and costly processes required to resolve
such trespass. Under the Federal Land Policy and Management Act of 1976, a
willful trespasser on public lands is subject to administrative costs, rents, and fines
and may be imprisoned for up to 12 months. The potential 12-month imprisonment
entitles the accused trespasser to a jury trial, which is expensive and can create
significant delays because of the substantial felony work load in U.S. District Courts.
Bureau field officials told us, and we confirmed, that the potential imprisonment
would have to be 6 months or less to allow U.S. Magistrate judges or U.S. District
Court judges to decide occupancy trespass cases, thereby shortening the process and
reducing the costs to the Government.

 
Occupancy trespass on unpatented mining claims involves additional determinations
that can take up to 8 years and cost an average of $11,000 per instance, not including
cleanup costs of the land. Under the Surface Resources Act of 1955, the use of land
on unpatented claims is limited to "prospecting, mining, or processing operations and
uses reasonably incident thereto." However, Bureau regulations implementing the
Surface Resources Act do not define "reasonably incident." In addition, the Bureau's
surface management regulations implementing the Federal Land Policy and
Management Act allow claimants to disturb up to 5 acres of land (notice-level
mining) without Bureau approval and without disclosing any planned structures.
Accordingly, the Interior Board of Land Appeals has noted that the Bureau's
regulations cannot be used to prevent occupancy trespass on notice-level mining
claims. In contrast, we noted that the U.S. Department of Agriculture's Forest
Service regulations (36 CFR 261) prohibit structures on Forest Service lands without
approval.

In addition to the cumbersome processes, Bureau officials at three of the five
resource areas visited told us that they were reluctant to enforce occupancy trespass
because of their concerns for employee safety. For example, one Federal employee
who had been actively involved in occupancy trespass resolution was told that there
was a "contract" on his life. In another instance, a Resource Area Manager believed
a mining claimant was violent and requested that the local SWAT (Special Weapons
and Tactics) team accompany Bureau personnel visiting that claimant.

Although the information was not available for us to establish the amount of
revenues that the Government has lost because of occupancy trespass, we found that
such trespass created public health and safety hazards, restricted public access, and
resulted in a negative image to the mining industry and in cleanup costs of up to
$27,000 per instance. Bureau officials told us, and we verified through site visits, of
the existence of significant amounts of trash and violations of local building, fire,
health, and sanitation codes. We also noted that fences and "No Trespassing" signs
restricted public access to rivers and other recreation areas and that significant
cleanup needed to be performed. Under current Bureau regulations, claimants
disturbing up to 5 acres are not required to post bonds to cover the costs of cleanup.
Conversely, the Forest Service can require that occupants post bonds to cover
cleanup costs for any surface disturbances, which can be less than 5 acres.

To correct the problems noted, we recommended that the Bureau: (1) develop an
action plan to resolve existing cases, including litigating high profile cases;
(2) promulgate in their final form the proposed regulations concerning mining
occupancy trespass and financial guarantees; (3) consider seeking legislative changes
to provide a range of penalties for occupancy trespass cases; and (4) instruct
Resource Area Managers to work with local law enforcement agencies, as
appropriate, to reduce the threat of violence to Bureau employees investigating
occupancy trespass.

 
In the May 15, 1996, response (Appendix 3) from the Director, Bureau of Land
Management, to the draft report, the Bureau concurred with our recommendation
(No. 2) to promulgate regulations concerning the unlawful use and occupancy of
unpatented mining claims and financial guarantees. Subsequent to the Bureau's
response, the final rule regarding the unlawful use and occupancy of unpatented
mining claims was published in the July 16, 1996, issue of the Federal Register. The
Bureau also concurred with our recommendation (No. 4) to work with local law
enforcement agencies to reduce the threat of violence to Bureau employees. Based
on the response, we considered Recommendations 2 and 4 resolved but not
implemented and will refer the recommendations to the Assistant Secretary for
Policy, Management and Budget for tracking of implementation.

The Bureau did not concur with the two recommendations (Nos. 1 and 3) regarding
the action plan for resolution of occupancy trespass cases and the length of prison
sentences for occupancy trespass. Based on the response and on publication of the
final rule, we revised Recommendation 1 to request that the Bureau develop an
action plan based on criteria established by Bureau management and
Recommendation 3 to request that the Bureau consider seeking legislative changes
to establish a range of penalties for occupancy trespass up to and including a 12-
month prison sentence. Therefore, the Bureau is requested to respond to the revised
recommendations, both of which are unresolved.  (The status of all the
recommendations is in Appendix 5.)

In its response, the Bureau included additional comments, which we incorporated
into this report as appropriate. Also, we received an April 24, 1996, memorandum
from the Assistant Solicitor, Branch of Onshore Minerals, Division of Mineral
Resources, stating that she "did not have objections" to the recommendations made
in the report. While we did not include a copy of her comments, they were
incorporated into our report as appropriate.

In accordance with the Departmental Manual (360 DM 5.3), we are requesting your
written response to this report by December 6, 1996. Your response should provide
the information requested in Appendix 5.

The legislation, as amended, creating the Office of Inspector General requires
semiannual reporting to the Congress on all audit reports issued, actions taken to
implement audit recommendations, and identification of each significant
recommendation on which corrective action has not been taken.

We appreciate the assistance of the Bureau in the conduct of this audit.

 


CONTENTS

Page

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...1
OBJECTIVE AND SCOPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...2
PRIOR AUDIT COVERAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

FINDING AND RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . ...4

RESOLVING OCCUPANCY TRESPASS . . . . . . . . . . . . . . . . . . . ...4

APPENDICES

l. SITES VISITED AND CONTACTED . . . . . . . . . . . . . . . . . . ...17
2. PRIOR AUDIT COVERAGE . . . . . . . . . . . . . . . . . . . . . . . . ...18
3. BUREAU OF LAND MANAGEMENT RESPONSE
  TO DRAFT REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . ...20
4. BUREAU OF LAND MANAGEMENT GENERAL COMMENTS
  AND OFFICE OF INSPECTOR GENERAL REPLY . . . . . . . 26
5. STATUS OF AUDIT REPORT RECOMMENDATIONS . . . . . . . 30

 
BACKGROUND



INTRODUCTION

The Bureau of Land Management is responsible for conserving, managing, and
developing 270 million acres of public lands in the United States. In this regard, the
Bureau is responsible for identifying cases of trespass, resolving those cases in an
equitable and timely manner, and preventing and discouraging future trespass.
Occupancy trespass has been identified by the Bureau as a common form of trespass.
The Bureau's primary authorities for addressing occupancy trespass are
Sections 302(b) and 303(a) of the Federal Land Policy and Management Act of 1976
(43 U.S.C. 1732 and 1733) and Section 4 of the Surface Resources Act of 1955
(30 U.S.C. 612(a)).

Occupancy trespass occurs when people live or build permanent or semipermanent
structures on public lands without authorization.1 Much of the occupancy trespass
occurs on unpatented mining claims.2 The Mining Law of 1872, as amended
(30 U.S.C. 22 et seq.), allows U.S. citizens to file claims and prospect for minerals on
public lands not closed or withdrawn from mining. To preserve and protect public
lands and prevent their undue degradation, the Congress has, over the years, enacted
legislation governing the surface use of unpatented mining claims. For example,
Section 4(a) of the Surface Resources Act of 1955 (30 U.S.C. 612(a)) limited the
development of unpatented mining claims to "prospecting, mining, or processing
operations and uses reasonably incident thereto."

As of June 1995, the Bureau had recorded 1,336 cases of occupancy trespass
nationwide, with 1,210 of these cases, or 90 percent, being more than 2 years old.
The Bureau records occupancy trespass as either realty occupancy trespass or mining
occupancy trespass. The type of trespass determines the manner in which the
trespass is addressed. The Bureau can address a realty occupancy trespass through
administrative actions, civil suit, or criminal prosecution.  If the occupant is
cooperative or if the trespass is unintentional, the Bureau attempts to resolve the
trespass informally through oral or written communication. The Bureau prefers to
resolve trespass through informal means because such means are usually quick and
inexpensive. If the Bureau suspects that the trespass is intentional or if attempts at
informal resolution are unsuccessful, the Bureau may take formal administrative,

lThe Code of Federal Regulations (43 CFR 2920.1-2), the authorization for which is provided by the
Federal Land Policy and Management Act, states that "any use, occupancy, or development of the
public lands, other than casual use . . . without authorization . . . shall be considered a trespass."

2An unpatented mining claim is one in which the claim holder has the right to explore, develop, mine,
and sell locatable minerals such as gold, silver, and copper and to conduct activities reasonably
incident to these uses while the United States continues to hold title to the land. This is in contrast
to a patented mining claim, in which the claim holder, with a per acre payment to the Government,
obtains the title to and exclusive use of the land and to any and all minerals in perpetuity.

1

 
civil, or criminal actions. Formal administrative action typically begins with the
issuance of a formal trespass decision by the Resource Area Manager and, after a
variety of appeals within the Bureau, can culminate in a decision by the Department
of the Interior's Board of Land Appeals. An occupant, but not the Bureau, can
appeal a decision of the Board to Federal District Court.

The Bureau can also initiate trespass actions through civil suit or criminal
prosecution. In a civil action, the Bureau must prove by a preponderance of the
evidence that it is entitled to its requested relief, such as restoration of lands. A
criminal prosecution, by contrast, requires proof beyond a reasonable doubt that an
intentional trespass has occurred. Because of the different standards of proof in civil
and criminal actions, if the Bureau first seeks criminal prosecution but is
unsuccessful, it can still bring a civil action. The reverse, however, is not true; that
is (as a practical matter), a criminal prosecution cannot be maintained after an
unsuccessful civil action in the absence of new or additional evidence.

The Bureau generally initiates resolution of a mining occupancy trespass through an
administrative process. Specifically, if the trespass cannot be resolved through
written and oral communication, the Bureau's resource area conducts a field
investigation to determine whether the occupancy is reasonably incident to the level
of mining. The resource area is required to notify the occupant by certified mail at
least 30 days before the investigation. If it is determined that the occupancy is not
reasonably incident to the level of mining, a mineral examiner in the resource area
prepares a Surface Use Determination Report to confirm the Bureau's field decision.
This report is then reviewed and validated by another mineral examiner in the
district or state office. The occupant is informed by letter that the occupancy is not
authorized and is given 30 days to vacate the land.  If the occupancy is not
terminated, the case is referred to the State Director, with a recommendation to
initiate a hearing before an administrative law judge3 in the Office of Hearings and
Appeals. Both the claimant and the Bureau can appeal the administrative law
judge's decision to the Interior Board of Land Appeals.

OBJECTIVE AND SCOPE

Our audit objective was to determine whether the Bureau was resolving trespass on
public lands. Our preliminary fieldwork disclosed that at four of the five sites we
visited, the Bureau was not addressing occupancy trespass in a timely manner.
Accordingly, we focused our efforts on determining the effectiveness of the Bureau's
policies and procedures for resolving occupancy trespass.

To accomplish our objective, we reviewed laws and Federal, Departmental, and
Bureau regulations and policies governing the unauthorized use of public lands as

3An administrative law judge presides at administrative hearings. The administrative law judge's
authority is essentially one of recommendation, but the judge's decision is binding on the claimant and
on the Bureau unless appealed and overturned by the Interior Board of Land Appeals.

2

 
they pertained to occupancy trespass. We also interviewed officials from the offices
identified in Appendix 1 to obtain information and data on the resolution of
occupancy trespass. In addition, we reviewed selected case files on occupancy
trespass for fiscal years 1993 and 1994 at the five resource area offices. However,
because of the inconsistencies in how occupancy trespass cases were coded, we were
unable, in many instances, to distinguish between realty occupancy trespass and
mining occupancy trespass. Further, we compared the Bureau's regulations, policies,
and procedures governing occupancy trespass resolution with those of the
U.S. Department of Agriculture's Forest Service to determine consistencies and
differences in the agencies' regulations addressing the uses of unpatented mining
claims. We also interviewed Forest Service officials to obtain information concerning
the success of the Forest Service's pilot program for resolving occupancy trespass at
Klamath National Forest in California.

The audit fieldwork was conducted from February through July 1995. This audit was
made, as applicable, in accordance with the "Government Auditing Standards," issued
by the Comptroller General of the United States. Accordingly, we included such
tests of records and other auditing procedures that were considered necessary under
the circumstances.

As part of the review, we evaluated the system of internal controls to the extent that
we considered necessary. We found that the Bureau had not established the
necessary controls to ensure the timely resolution of occupancy trespass. The
weaknesses in this area are discussed in the Finding and Recommendations section
of this report. If implemented, our recommendations should improve the internal
controls in these areas. We also reviewed the Department's Annual Statement and
Report, required by the Federal Managers' Financial Integrity Act of 1982, for fiscal
years 1993 and 1994 and determined that none of the reported weaknesses were
directly related to the objective and scope of our audit.

PRIOR AUDIT COVERAGE

Since 1990, the Office of Inspector General has issued two reports and the General
Accounting Office has issued one report concerning occupancy trespass on
Bureau-managed lands. The Office of Inspector General also has written a report
on hardrock mining site reclamation, which includes some of the same concerns
detailed in this audit report. Overall, the audit reports concluded that there were
many unauthorized residences on unpatented mining claims and that the Bureau had
not allocated sufficient resources to resolve occupancy trespass cases in a timely
manner or collected administrative costs, rents, and penalties associated with these
trespasses. These reports are synopsized in Appendix 2.

 
I



FINDING AND RECOMMENDATIONS

RESOLVING OCCUPANCY TRESPASS

At four of the five resource areas we visited, the Bureau of Land Management was
not adequately resolving occupancy trespass. Under the Federal Land Policy and
Management Act of 1976, any occupancy on public lands without authorization is
considered a trespass, which results in the trespasser being subject to administrative
costs, rents, land restoration costs, and civil and criminal penalties. The Surface
Resources Act of 1955 authorizes occupancy on unpatented mining claims, provided
that the occupancy is "reasonably incident" to the level of mining being undertaken.
However, with the exception of the Folsom Resource Area, officials at the resource
areas we visited said that they had assigned a low priority to resolving occupancy
trespass because the processes required for addressing occupancy trespass under the
Federal Land Policy and Management Act and the Bureau's regulations
implementing the Surface Resources Act were cumbersome and expensive. In
addition, recent threats of violence against Bureau employees have made some
Resource Area Managers reluctant to resolve occupancy trespass because of
concerns for the safety of their staff. We were unable to establish the monetary
impact of not resolving occupancy trespass in terms of revenue loss to the
Government because the necessary information was not available at the offices we
visited. However, our review disclosed that such trespass resulted in public health
and safety hazards; in restricted public access; in a negative image of the legitimate
mining industry; and in expensive cleanup costs to the Government, which, according
to Bureau estimates, ranged from $2,500 to $27,000 per instance.

Folsom Resource Area

We found that the Bureau's Folsom Resource Area was actively resolving occupancy
trespass and was the only area that could provide us with complete case statistics for
fiscal years 1993 and 1994. At the beginning of fiscal year 1993, the Resource Area
had 153 occupancy trespass cases pending. During fiscal years 1993 and 1994,
Resource Area staff identified and recorded 88 new occupancy trespass cases and
resolved 107 cases. The staff said their success in resolving trespass cases was the
result of their cooperative and diligent efforts and the commitment of the Area
Manager, who made trespass resolution a high priority. For example, the Area
Manager's systematic approach to resolving trespass included appointing a trespass
coordinator to focus on trespass issues; assigning various staff, such as rangers,
geologists, and realty specialists, the responsibility for resolving specific trespass
cases; and holding the assigned staff accountable for resolving the cases assigned to
them. In addition, the Resource Area Manager conducted training classes for other
Bureau resource area employees on ways to address and resolve trespass cases.

The Resource Area Manager and his staff used a combination of methods to resolve
trespass. For example, they requested county inspections to determine occupant

4

 
compliance with county building, health, and safety codes and prepared legal
documents for the U.S. Attorney's Office. Of the 25 cases that we reviewed, 10 cases
were resolved:  6 through the administrative process and 4 through criminal
prosecution after 2 years of attempts to resolve these cases administratively. The
Resource Area had addressed the remaining 15 occupancy trespass cases to the
extent practicable, with many cases awaiting the completion of actions, such as land
surveys by the district or state offices, that were beyond the Resource Area's scope
of responsibility.  The Resource Area's persistence in attempting to resolve
occupancy trespass is illustrated in the following examples:

- The Resource Area used a combination of methods to resolve mining
occupancy trespasses along the Merced River in Mariposa County, California. The
trespasses involved seven different mining claimants who, in the 1980s, began living
on three sites along a section of the river included in a Wild and Scenic River Study
Area. Mining activity consisted primarily of dredging, which was occurring only
3 months a year; however, occupancy was occurring year-round. The Area Manager
determined that the occupancy was not in compliance with County codes and,
from 1986 through 1988, attempted to bring the claimants into compliance. In 1988,
notices of noncompliance, including noncompliance with county building, health, and
sanitation codes, were issued to the occupants, who appealed the notices to the
Bureau's California State Office. When the State Office upheld the notices, the
claimants appealed to the Interior Board of Land Appeals, which referred the case
back to the Bureau for criminal prosecution. In 1990, a U.S. Magistrate judge4
dismissed the criminal charges against the claimants because applicable mining
regulations (43 CFR 3809) did not provide for criminal sanctions. In 1991, the
Bureau consulted with the U.S. Attorney's Office. After subsequent efforts by the
U.S. Attorney's Office and the Resource Area staff, the cases were resolved through
negotiated settlements in 1993, the claimants vacated the land, and the sites have
since been reclaimed as recreation areas.

- Another mining claimant has occupied a site in Mariposa County since at least
1982. From 1982 to 1994, Bureau geologists performed 14 inspections and
determined that there was no evidence of mining and that all surface disturbance was
related to the occupancy. During this time, the Area Manager attempted to bring
the claimant into compliance. For example, in 1989, Bureau officials issued a
trespass notice citing the claimant for violating building and sanitation codes and for
creating a hazard and public nuisance that resulted in undue degradation of public
lands. In 1991, the Resource Area conducted fire safety inspections and determined
that the claimant had violated Federal and state fire laws. In 1993, a County
building inspection determined that the structures on the claim were substandard for
housing purposes and in violation of County building codes. In 1994, the Area
Manager requested the assistance of the U.S. Attorney's Office in resolving the case.
As of February 1996, an Assistant U.S. Attorney was working on a settlement

4U.S. Magistrate judges are appointed by U.S. District Court judges and have the jurisdiction to try
persons accused of misdemeanors committed within that judicial district.

5

 
agreement whereby the claimant would vacate the land. However, the trespass case
was still pending after 13 years of effort by the Resource Area.
- A 1994 realty occupancy trespass in Nevada County involved an individual who
camped on Bureau lands, denied other visitors use of the land, and made threats
against Bureau employees.  The Bureau used the 14-day camping limit on
Bureau-managed lands to attempt to resolve the trespass and requested that the
Regional Solicitor refer the case to the U.S. Attorney's Office. To help expedite
resolution of the case, the Resource Area prepared the legal documents for the
U.S. Attorney's Office. In January 1995, the U.S. Attorney's Office negotiated an
agreement with the occupant.
Other Resource Areas
The Barstow, Ridgecrest, Ashland, and Grants Pass Resource Areas did not
systematically identify, record, and resolve occupancy trespass cases. Bureau officials
at these resource areas stated that they did not assign a high priority to identifying
new occupancy trespass because the process for resolving trespass was so time
consuming and cumbersome that they concentrated on other higher priority activities.
The inventory of occupancy trespass cases for fiscal years 1993 and 1994, which
includes the Folsom Resource Area for comparison purposes, is presented as follows:

Occupancy Trespass Cases Recorded, Resolved, and Pending at

Resource Area
Folsom
Barstow*
Ridgecrest*
Grants Pass*
Ashland*
Total

Cases Pending
October 1, 1992
  153
  78
  78
   9

New Cases
Opened During  Cases Resolved
Fiscal Years   During Fiscal
1993 and 1994 Years 1993 and 1994
  88       107
  0       3
  10       4
  0       4
  0 -

Locations Visited

Cases Pending
September 30, 1994
  134
   75
   84
   5

*Bureau officials at these resource areas said that the numbers were understated because they did not
document

all occupancy trespass cases. Therefore, the numbers do not accurately reflect either the magnitude
or the
significance of the occupancy trespass problem.

The Grants Pass and Ashland Resource Area Managers said that they did not
attempt to resolve occupancy trespass unless the trespassers created other problems,
such as excessive resource degradation or health and safety violations, because they
did not have the staff and because other priorities, such as timber theft, took
precedence. Although Ridgecrest and Barstow Resource Area personnel resolved

 
some occupancy trespass, they said that their efforts were not always systematic
because the process was time consuming and cumbersome.

Resolution Processes. When a realty occupancy trespass is suspected, the Bureau
tries to resolve the situation informally by notifying occupants that they can stay on
Bureau-managed land for only 14 days. If the occupants exceed the 14-day camping
limit, they are issued a citation and notified that they have a right to a jury trial in
a Federal District Court. Bureau officials stated that most occupants who were
issued citations and did not vacate the land requested a jury trial, which was an
expensive and time-consuming process for the Bureau. Meanwhile, the occupants
remained on the land. The Federal Land Policy and Management Act, Section
303(a), provides that a person who "knowingly and wilfully" trespasses on public land
"shall be fined no more than $1,000 or imprisoned no more than 12 months, or both."
Bureau officials told us that this possible 12-month imprisonment created significant
delays in resolving occupancy trespass because it entitled the accused trespasser to
a jury trials.5  In addition, as stated by one Resource Area Manager, the
U.S. Attorneys are often reluctant to bring occupancy trespass cases before a judge
because of the District Court's substantial felony work load. This same Area
Manager further stated that the people who are on Bureau-administered lands know
that jury cases may never come to trial and "use it [this knowledge] to their
advantage." Bureau officials suggested that changing legislation to allow U.S. District
Court judges or U.S. Magistrate judges (with the consent of the defendant) to decide
certain cases would considerably shorten the process and reduce the Government's
expense.

Mining occupancy trespass cases are even more difficult to resolve because mining
issues must be addressed before a mining claim occupancy can be declared a trespass
and actions initiated to remove the trespasser. Bureau officials told us, and we
confirmed, that the process of resolving the mining issues is lengthy and expensive,
taking up to 8 years to complete and costing an average of $11,000 per instance, not
including the cost of any cleanup.

We believe the primary mining issue that must be addressed is whether the
occupancy is "reasonably incident" to the level of mining. The Surface Resources Act
(30 U.S.C. 612(a)) limited the use of land on unpatented mining claims to
"prospecting, mining, or processing operations and uses reasonably incident thereto."
However, the Bureau's regulations (43 CFR 3712. l(a)) do not define when a use,
such as an occupancy, is "reasonably incident" to mining. According to the legislative
history of the Act, one of the purposes of the Act was to "amend the general mining
law to prohibit the use of any hereafter located unpatented mining claim for any
purpose other than prospecting, mining, processing, and related activities."

5Under the 6th Amendment to the Constitution, any person accused of a crime has the right to a jury
trial. However, in United States v. Nachtigal, 113 S. Ct. 1072 (1993), the Supreme Court determined
that misdemeanors with maximum possible sentences of 6 months or less are "petty" offenses and do
not entitle the accused to a jury trial.

7

 
In addition, the problems of addressing occupancy trespass on unpatented mining
claims are exacerbated by the Bureau's surface management regulations (43 CFR
3809.1-3(a)). Under this section, claimants are allowed to disturb up to 5 acres of
land just by filing a notice informing the Bureau of their intent to operate.6 The
regulations (43 CFR 3809.1-3(b)) do not require that the Bureau approve the notices
or that claimants disclose any planned structures, including residences. Accordingly,
the Bureau is limited in its ability to evaluate the legitimacy of the residences of
claimants who disturb 5 acres or less, commonly referred to by the Bureau as
"notice-level" mining. Our audit disclosed that much of the occupancy trespass
occurs at the notice level.

In the Crawford case (Bruce W. Crawford et UX, 86 IBLA 350, 392 (1985)), the
Interior Board of Land Appeals noted that under present regulations, the Bureau
cannot prevent occupancy at the notice level of mining and must react to rather than
anticipate the occupancy activities of a claimant. The Board stated:

We are forced to deal with the regulations as we find them, not as we
would have written them.  If it was BLM's [Bureau of Land
Management's] intent to require its approval prior to the establishment
of residency on mining claims, BLM need only amend its regulations
so that they reflect such an intent.

In contrast, Forest Service regulations (36 CFR 261.10) specifically prohibit the
following:

Constructing, placing, or maintaining any kind of. . . structure . . . or
other improvement on National Forest system land . . . without a
special-use authorization, contract, or approved operating plan.

In addition, Forest Service regulations (36 CFR 228.4) provide that claimants
wanting to conduct notice-level or plan-of-operation mining activity on Forest Service
lands should notify the District Ranger, who has the authority to determine whether
the activities involved will likely cause a "significant" surface disturbance. If the
District Ranger determines that the disturbance will be "significant," the claimant is
required to submit a proposed plan of operations and generally post a reclamation
bond. Structures, including residences, are considered surface disturbances and, as
such, require the claimant to submit a plan of operations. If the proposed structures
are not deemed incidental to the level of mining, the District Ranger does not
approve the plan and advises the occupants that they will be in trespass. Forest
Service officials stated that by requiring a plan of operations, they can prevent
construction or placement of structures, including residences, not authorized by the
plan. This enables the Forest Service to more readily address cases of occupancy
trespass on both notice-level and plan-of-operation mining activity. For example,

6Operations include all activities in connection with prospecting, discovering, and mining mineral
deposits.

8

 
Forest Service officials told us that the Forest Service practically eliminated
occupancy trespass on unpatented mining claims in Klamath National Forest between
1988 and 1995. By applying its existing regulations, the Forest Service reduced
occupancy trespass cases from 237 to fewer than 10. While the Bureau's Folsom
Resource Area also successfully resolved occupancy trespass cases, it did so in spite
of existing regulations. As expressed by officials in the Bureau's Medford District
and Grants Pass Resource Area Offices, employees should not have to overcome
their own regulations to resolve trespass.

Bureau and Forest Semite officials, Solicitors, and an Assistant U.S. Attorney who
prosecutes trespass cases generally agreed that the Bureau's regulations complicated
rather than facilitated the resolution of mining occupancy trespass. According to the
Assistant U.S. Attorney, the Bureau's regulations themselves prevent the pursuit of
occupancy trespass because the regulations do not provide attorneys with a valid
legal basis from which to argue in court. The Assistant U.S. Attorney told us that
by using Forest Service regulations, she had been successful in removing mining
occupants who were in trespass on Forest Service lands. Both Forest Service and
Bureau officials stated that occupants evicted from Forest Service lands frequently
moved to Bureau-managed lands.

We believe that if the Bureau is to address the increasing problem of both realty and
mining occupancy trespass, the Bureau must pursue resolution more diligently. In
this regard, the Bureau did initiate actions to address mining occupancy trespass in
1991 and 1992, when it published two sets of proposed regulations: one set
addressing mining occupancy trespass and the other set addressing financial
guarantees, including bonding, which, if promulgated, could have the effect of
reducing the number of unauthorized residences on unpatented mining claims. As
of May 1996, the mining occupancy trespass regulations were awaiting Congressional
approval, and the financial guarantee regulations were awaiting Departmental and
Office of Management and Budget approval. Both sets were awaiting subsequent
publication in the Federal Register in their final form. We believe that the Bureau
should finalize these proposed changes to give it greater control over occupancy
trespass on unpatented mining claims. The Bureau should also seek legislative
changes for issues that cannot be addressed administratively. Although it is difficult
for the Bureau to resolve occupancy trespass under current regulations, the Folsom
Resource Area has shown that occupancy trespass cases can be resolved successfully
through the commitment of resources.

Employee Safety. Some Bureau officials told us that concerns for employee
safety made them reluctant to enforce occupancy trespass, particularly on unpatented
mining claims. At three of the five resource areas visited, we were told of threats
against Federal employees ranging from verbal abuse to the brandishing of weapons.
For example, one resource area employee said that occupants of unpatented mining
claims told him that there was a "contract" on his life and that a private investigator
had been hired to look into his background. According to the Area Manager, the
employee had "pushed for the resolution of various long standing problems . . .
involving the illegal mining and production of. . . minerals from unpatented federal

9

 
mining claims [and] occupancy trespass."7 Other employees conducting on-site
inspections of an unpatented mining claim were similarly challenged.8 Based on
these threats, the Area Manager initiated a policy requiring employees visiting
occupancy trespass sites to be accompanied by a Bureau law enforcement officer.
In another instance, the Area Manager requested the local SWAT (Special Weapons
and Tactics) team to accompany Bureau personnel dealing with a mining claimant
whom the Area Manager believed to be violent. The claimant was later shot and
killed by a rival mining claimant.

Impact of Occupancy Trespass

As a result of the time-consuming and expensive processes for resolving trespass and
the issue of employee safety, we concluded that four of the five resource areas visited
were not adequately resolving occupancy trespass. The effect of continued inaction
in resolving occupancy trespass, according to Bureau officials, includes the following
areas of concern: public health and safety hazards; restricted public access; a
negative image of the mining industry; and expensive Government cleanup costs,
ranging from $2,500 to $27,000 per instance.

Public Health and Safety. Occupancy trespass sites are sometimes located in
remote locations where county services, such as trash removal, are not available.
When occupants do not remove the trash, it continues to accumulate, posing public
health and safety hazards. In addition, structures on the sites may be erected
without inspections by local building, health, and safety officials. Accordingly,
occupants may be in violation of local building, fire, and health and sanitation codes.
During our site visits, we noted a ramshackle structure with accumulated trash (see
Figure 1), old tires, abandoned autos, old appliances, and broken furniture.

7A September 12, 1994, memorandum from the Resource Area Manager to the District Manager.

8In a December 13, 1991, memorandum from the Area Manager to the District Manager, the Area
Manager stated that the "general tone, accusations, and hostility. . . in conversations both in the field
and on the telephone . . , lead me to believe these individuals may pose a peril to our personnel."

10

 
1

Figure 1. A ramshackle structure, surrounded by debris, on an unpatented claim in the Medford,
Oregon,
area. (Office of Inspector General photograph)

In addition, Bureau employees told us that some occupants carry firearms to prevent
Bureau employees and the general public from using public land, thus posing a
threat to public safety. In one resource area, there have been at least 12 reported
homicides on unpatented mining claims since 1984. In one instance, an argument
between two unauthorized occupants over access to their claims resulted in the death
of one occupant. The Resource Area Manager stated that he believed that it was
"just a matter of time before casual visitors are injured or killed in one of these
encounters" and that such "tragedies have been narrowly avoided in the past only
because of luck."

Public Access. During our site reviews, we noted that some occupants erected
fences (see Figure 2) and "No Trespassing" signs on public land to prevent public
access to recreation areas, creeks, and rivers. In addition, the occupancy itself deters
the public from using the land.

Figure 2. This gate, erected by a mining claimant, blocks access to public lands near Medford,
Oregon.
(Office of Inspector General photograph)

11

 
Mining Industry. One Resource Area Manager, in a letter to the Director of
the Bureau, stated that he had discussed trespass issues with local mining councils
and with the executive board of a state mining association. According to the Area
Manager, the mining officials stated that they were "increasingly concerned with the
negative image of the mining industry that is generated by the trespassers."
According to these officials, occupancy of legitimate mining claims was not an issue.
The Resource Area Manager stated:

Most legitimate miners say that requiring authorization for them to
live on their claims would be no hardship whatsoever. The large
mining companies say they usually don't want employees living on the
site of their operations. Small-scale miners say any need to live on
their claims would be established in their Plan of Operation.

Cleanup Costs. Once an occupant has vacated the public land, the Bureau is

often burdened with the costs of cleanup, which the Bureau has estimated to range
from $2,500 to $27,000 per instance. These cleanup costs are associated with
unauthorized occupancies at the notice level of mining. Under Bureau regulations,
notice-level claimants are not required to post bonds or other financial guarantees
to provide for cleanup or reclamation of the lands. Accordingly, the Bureau can
either clean up the land using Government funds or attempt to recover the cost of
cleanup from the claimants through litigation. Bureau officials said that pursuing
litigation was generally not cost beneficial because the claimants, in most cases, do
not have the resources to pay. A site in Mariposa County before and after the
Bureau's cleanup is shown in Figures 3 and 4, respectively. Cleanup costs for this
site, one of three sites that were included in a mining occupancy trespass, were about
$12,800. Cleanup costs for these three sites totaled about $27,000.

12

 
Figure 4. The mining claim site near the Merced River shown in Figure 3 after Bureau cleanup and
regeneration of the land. (Office of Inspector General photograph)

The Forest Service, unlike the Bureau, generally requires bonding for land surface
disturbances deemed to be significant, including those on lands of fewer than 5 acres.
As a result of this requirement, officials at Klamath National Forest estimated that
they recovered at least 80 percent of cleanup costs.

Subsequent Bureau Actions

On July 16, 1996, the Bureau published in the Federal Register the final rule (43 CFR
3715) addressing the unlawful use and occupancy of unpatented mining claims for
nonmining purposes. The summary in the Federal Register states:

This rule sets forth the restrictions on use and occupancy of public
lands open to the operation of the mining laws that BLM [Bureau of
Land Management] administers in order to limit use and
occupancy. . . .  [The rule also] establishes . . . standards for
reasonably incidental use or occupancy, prohibited acts, procedures for
inspection and enforcement, and procedures for managing existing uses
and occupancies. . . . The rule does not adversely affect bona fide
mining operations or alter BLM's regulations in 43 CFR Part 3800
pertaining to them.

Under this rule, all claimants must now obtain Bureau approval for building and
occupying structures on unpatented mining claims, even if they are planing to disturb
no more than 5 acres of land. As such, implementation of the final rule should
reduce the illegal occupancy of unpatented mining claims at notice-level mining.
However, the final rule regarding financial guarantees (43 CFR 3809) was not
published. We believe that a requirement for financial guarantees, including bonding,
would further discourage occupancy trespass on unpatented mining claims by
claimants whose primary interest in the land is other than mining.

13

 
We also noted that the final rule provides for the Bureau to "request the United
States Attorney to institute a civil action in United States District Court" to prevent
use or occupancy of the public lands in violation of the regulations. We believe that
the use of civil action, as opposed to criminal action, will also help reduce the time
and cost to the Government of resolving trespass cases.

Recommendations

We recommend the Director, Bureau of Land Management:

1. Develop an action plan with target dates for resolving identified occupancy
trespass cases that are most in need of resolution based on criteria established by
Bureau management.

2. Promulgate in their final form the proposed regulations concerning the
unlawful use and occupancy of unpatented mining claims and financial guarantees,
including bonding.

3. Consider seeking appropriate legislative changes to provide a range of
penalties for occupancy trespass up to and including a 12-month prison sentence to
allow, when appropriate, U.S. District Court judges or U.S. Magistrate judges (with
the consent of the defendant) to decide occupancy trespass cases.

4. Instruct Resource Area Managers to work with local law enforcement
agencies, as appropriate, to develop and implement options to reduce the threat of
violence to Bureau employees in the performance of their duties.

Bureau of Land Management Response and Office of Inspector General
Reply

In the May 15, 1996, response (Appendix 3) from the Director, Bureau of Land
Management, the Bureau concurred with Recommendations 2 and 4 and
nonconcurred with Recommendations 1 and 3. Based on the Bureau's response we
consider Recommendations 2 and 4 resolved but not implemented. Also based on
the response, we revised Recommendations 1 and 3 and requested that the Bureau
consider the revised recommendations, both of which are unresolved (see
Appendix 5).

Recommendation 1. Nonconcurrence.

Bureau Response. The Bureau stated that the recommendation "would divert
funding from [core] activities with little guarantee of success" and would create "high
profile expectations as well as animosities." The Bureau also stated:

We feel that the only sustainable approach is to fully integrate
management of occupancy into the Bureau's core activities, consistent

14

 
with available finding. Our solution starts by taking a simple and
quiet approach, the agency identifies those cases that need
management before all others and begins to take the necessary
actions . . . without fanfare, without diversions created by publicity and
without quotas for litigation. Having started with the first case, if
funding allows we move on to the next case and repeat the process
until all of the existing cases are finished. We litigate only when
appropriate and necessary.

Office of Inspector General Reply. We infer from the response that the Bureau
does not consider occupancy trespass a core activity. However, we are not convinced
that occupancy trespass is not a core activity for the following reasons. In its 1994,
1995, and 1996 Budget Justifications, the Bureau reported to the Congress that the
Bureau's program would:

Support the Administration's initiatives . . . by . . . maintain[ing] an
ongoingp rogram of prevention, detection, and resolution to abate the
unauthorized use of the Public Lands. [Emphasis added.]

In addition, the position description for the Bureau's GS-1801-12, Staff Law
Enforcement Rangers, which was standardized throughout the Bureau in 1994, states:

Incumbent is . . . responsible for the development and implementation
of Office policies and standards for law enforcement and ranger

However, because the Bureau implied in its response that trespass abatement was
not a core activity, we have revised our recommendation to assist the Bureau with
its goal of fully integrating the "management of occupancy into . . . [its] core
activities." The revised recommendation incorporates the Bureau's statement of what
it believed was a "sustainable approach" to resolving occupancy trespass.

Recommendation 3. Nonconcurrence.

Bureau Response. The Bureau "strongly" disagreed with our recommendation
to reduce the potential prison sentences for occupancy trespass from 12 months to
6 months to allow judges to decide occupancy trespass cases. The Bureau stated:

The "downsizing" of the FLPMA [Federal Land Policy and
Management Act]-based penalties . . . appears to be based on the
strongly held notion among the BLM [Bureau of Land Management]
field personnel that a reduction in FLPMA penalties . . . will
automatically result in the elimination of the right to trial by jury.

On a philosophical basis we fail to see the efficacy of this approach to
managing occupancy trespass. . . . If we believe that . . . [public]

15

 
resources are valuable, then occupancy trespass that results in resource
damage should merit greater penalty than a "Class A' misdemeanor,
not a lesser one.

Office of Inspector General Reply. We made the recommendation based not
only on our review of Bureau regulations but also on discussions with Bureau
personnel and an Assistant U.S. Attorney who prosecutes trespass cases because
they, and we, believed that the recommendation would provide Bureau field staff
with an additional tool in resolving occupancy trespass. By making trespass a
misdemeanor (Class B), which carries a penalty of imprisonment of 6 months or less,
the right to a jury trial would be eliminated, and defendants would choose to be tried
by either a U.S. Magistrate judge or a U.S. District Court judge. As such, the
defendants could no longer use a jury trial as a delaying tactic. As to public
resources, we agree with the Bureau that they are valuable and should be protected.
The intent of our recommendation was to protect these resources because we noted
that under the occupancy trespass resolution process at the time of our review, many
of these valuable public resources were unprotected, since occupancy trespass was
largely unabated.

However, we revised our recommendation based on the Bureau's response and on
the publication of the final rule on the unlawful use and occupancy of unpatented
mining claims (43 CFR 3715), which we believe should reduce the number of future
occupancy trespass cases occurring at notice-level mining, where much of the trespass
occurs. Accordingly, we request that the Bureau consider seeking legislative changes
to provide for a range of penalties for occupancy trespass up to and including the 12-
month prison sentence. We believe that such a range of penalties would give Bureau
field personnel greater flexibility in addressing occupancy trespass based on the
extent, nature, and severity of the trespass and allow them to resolve the trespass
expeditiously, resulting in the removal of the trespasser from public lands. In
addition, the revised recommendation would accommodate the Bureau's concern that
the maximum penalty should be maintained for the degradation or misuse of
valuable public resources.

General Comments

In its response, the Bureau also made several general comments about our
description and evaluation of the Bureau regulations pertaining to surface resource
management. On July 16, 1996, after the Bureau had submitted its response to the
draft report, it published the final rule on use and occupancy of unpatented mining
claims, which rendered much of the discussion moot. However, we have included
the Bureau's general comments and our reply to provide the respective positions of
the Bureau and our office on the problems faced by the Bureau in addressing
occupancy trespass at the time of our audit (see Appendix 4).

16

 
                 APPENDIX 1

SITES VISITED AND CONTACTED

     Office
Department of the Interior
Bureau of Land Management
Headquarters
  Mining Law Administration Office*
  Lands Records Office*
  National Law Enforcement, Security
   and Investigations Team*
Idaho State Office*
California State Office
  Bakersfield District*
   Folsom Resource Area
  California Desert District
   Barstow Resource Area
   Ridgecrest Resource Area
Oregon State Office*
  Medford District
   Ashland Resource Area
   Grants Pass Resource Area
Office of the Solicitor
Regional Solicitor's Offices*
Department of Justice
U.S. Attorney's Office*
Department of Agriculture
Office of Inspector General*
U.S. Forest Service
Pacific Southwest Region*
  Klamath National Forest
State of California
Department of Parks and Recreation*
State of Oregon
Division of State Lands*

Location

Washington, D.C.
Washington, D.C.

Boise, Idaho
Boise, Idaho
Sacramento, California
Bakersfield, California
Folsom, California
Riverside, California
Barstow, California
Ridgecrest, California
Portland, Oregon
Medford, Oregon
Medford, Oregon
Medford, Oregon
Washington, D.C.
Portland, Oregon
Sacramento, California

Fresno, California

Washington, D.C.

San Francisco, California
Yreka, California

Sacramento, California

Salem, Oregon

*Contacted only

17

 
APPENDIX 2
Page 1 of 2

PRIOR AUDIT COVERAGE

Since 1989, the Office of Inspector General and the General Accounting Office have
each issued two reports addressing aspects of occupancy trespass on lands managed
by the Bureau of Land Management. The Office of Inspector General has also
written a report on hardrock mining site reclamation, which included some of the
main concerns detailed in this report. These reports are as follows:

- The Office of Inspector General report "Survey of Selected Programs of the
Alaska State Office, Bureau of Land Management" (No. 90-84), issued in July 1990,
reported that the Bureau's Alaska State Office had not resolved over 300 trespass
cases at the four district offices visited. As a result, the Government lost an
unquantifiable amount of revenues because the State Office was not collecting
administrative costs, rents, and penalties associated with trespass cases.

- The Office of Inspector General report "Survey of Selected Programs of the
Colorado State Office, Bureau of Land Management" (No. 90-64), issued in
April 1990, reported that the Colorado State Office had not attempted to resolve
216 of 247 trespass cases identified on Bureau lands at five resource area offices
visited. As a result, the Government lost an unquantifiable amount of revenues by
not collecting administrative costs, rents, and penalties associated with trespass
resolution.

Based on our recommendations in both reports, the Bureau agreed to take the
following actions: develop and implement an overall plan to identify trespass on
public lands administered by the Alaska and the Colorado State Offices; allocate
sufficient resources to resolve all potential trespass cases; resolve present and future
trespass cases in a timely manner; and collect administrative costs, rents, and
penalties associated with the trespass. However, at four of the five Bureau offices
we visited during our current audit, we found that sufficient resources were not
allocated to resolve trespass cases in a timely manner.

- The Office of Inspector General report "Hardrock Mining Site Reclamation,
Bureau of Land Management" (No. 92-I-636), issued in March 1992, reported that
the Bureau had not adequately implemented procedures to ensure that abandoned
hardrock mining sites on Bureau-managed lands were being reclaimed and, as a
result, constituted serious hazards to persons, wildlife, and the environment. To
correct this condition, the report recommended that the Bureau amend the
regulations to require that all hardrock mining operators except casual use operators
post financial guarantees with the Bureau commensurate with the anticipated type
and size of the operation. As of May 1996, the recommendation was pending
resolution at the Department of the Interior.

- The General Accounting Office report "Unauthorized Activities Occurring on
Hardrock Mining Claims" (No. GAO/RCED-90-111), issued in August 1990, stated

18

 
APPENDIX 2
Page 2 of 2

that despite the restrictions placed on nonmining activities by the Surface Resources
Act of 1955, some claimants were using their claims for unauthorized residences. Of
59 sites visited, 33 had unauthorized residences ranging from small, rundown shacks
to permanent, more expensive, year-round dwellings. The General Accounting
Office recommended that a $100 annual fee (also recommended in a previous
report) would reduce the number of invalid, inactive, and abandoned claims and the
number of unauthorized activities. In response to the General Accounting Office
reports, the Congress, with the passage of Public Law 102-381 in 1992 and Public
Law 103-66 in 1993, implemented an annual fee of $100 per claim. However, the
legislation exempted miners with 10 or fewer claims from the fee requirements.

19

 
APPENDIX 3
Page 1 of 6

United States Department of the Interior


           Washington. D.C. 20240

In Reply Refer To:
1245 (320)

Memorandum

To:     Assistant Inspector General for Audits

Thank you for the opportunity to review the draft OIG Report entitled "Occupancy Trespass
Resolution, Bureau of Land Management", March 1996 (No. W-IN-BLM-001-95). The
attached comments respond to the issues raised in the report as well as the recommendations
for corrective action.

We fully support the recommendation to promulgate the final use and occupancy regulations
(43 CFR 3715) and the bonding amendments to the surface management regulations
(43 CFR 3809) (Recommendation 2). We fully support the concept of working with local
law enforcement agencies (Recommendation 4). We believe that BLM personnel with law
enforcement responsibility are the appropriate individuals to develop working arrangements
with local law enforcement officials.

We cannot support a proposal for stand alone "high profile" trespass abatement that diverts
scarce funding from our core programs (Recommendation 1). We believe that the only
sustainable approach is to manage mining claim occupancy with the pending regulations. We
also cannot support the recommendation for a legislative change that "downsizes" Federal
Land Policy and Management Act based penalties in order to make things "easier"
(Recommendation 3). We believe that the proposal would be ineffectual and would damage
our relationships with the Congress and with our customers.



 
APPENDIX 3  `- 
Page 2 of 6

Once the regulations are promulgated, we will begin our approach to managing occupancy on
mining claims. The responsible official is the Assistant Director, Resource Use and
Protection.

If you have any questions regarding our response, please contact Gwen Midgette BLM Audit
Liaison Officer at 452-7739.

Attachment

21

 
APPENDIX 3
Page 3 of 6

Response to Draft OIG Report entitled Occupancy Trespass Resolution,
     Bureau of Land Management, March 1996
        (No. W-IN-BLM-001-95)

General

Some of the recommendations contained in this report can be accepted by the Bureau of Land
Management (BLM). However, we are concerned about much of the material contained in
the draft report, particularly, two general areas: the discussion of the BLM's surface
management regulations (43 CFR 3809) and the desire to eliminate trial by jury.

Surface Management Regulations - In general we find that the draft report does not
adequately describe or evaluate the existing BLM surface management regulations
(43 CFR 3809). It simply presents statements attributed to BLM field personnel that the
regulations are "cumbersome and expensive" and then uncritically accepts these statements.
The report then fails to examine why the regulations are cumbersome and expensive. Do
these faults arise from a lack of guidance, are they due to inherent structural failures within
the regulation themselves, or is the task of managing the use of property rights granted by the
mining law simply a difficult one? All of these questions remain unanswered by your report.

Moreover, the report fails to take note of the purpose of the regulations: prevention of
unnecessary or undue degradation pursuant to the mandate in the last sentence of section
302(b) of the Federal Land Policy and Management Act (FLPMA) (43 USC 1701 et seq.).
Fulfilling this mandate is somewhat different than simple occupancy trespass abatement, as
case law has made clear. The case of Bruce Crawford, et UX. , 1985, 92 ID 208, 86 IBLA 350
is the principle case cited by your report. The report cites the case incorrectly (see p. 14) and
discusses the outcome of the case with apparent disapproval. The analysis presented by your
report misses the point of the case as discussed by the Interior Board of Land Appeals
(IBLA)

"The . . . `reasonably incident' standard resolves questions as to the
permissibility of a use by determining whether or not the use is reasonably
incident to the activities actually occurring. . .. The `unnecessary or undue
degradation' (of Section 302(b) of the Federal Land Policy and Management
Act) standard comes into play only on a determination that degradation is
occurring . . . (T)he inquiry then becomes one of determining whether the
degradation occurring is unnecessary or undue assuming the validity of the use
which is causing the impact. For, if the use is, itself, not allowable, . . . that use
may be independently prohibited as not reasonably incident to mining..."
(92 ID 208 at 233).

22

 
APPENDIX 3
Page 4 of 6

When promulgated after four years of considerable controversy, the BLM's surface
management regulations contemplated the management of reasonably incident activities and
not the determination of what was reasonably incident. Regulations pertaining to that matter
were pre-existing and are found at 43 CFR 3712. These regulations, while primarily
informational in nature, address the question of reasonably incidental use, and it is these
regulations that the BLM cites in the contest process described on page 3 of the report. This
process, while cumbersome is required when a dispute arises as to the facts in a case. This is
the same as that outcome of the Crawford Case. In Crawford, the IBLA simply provided the
mining claimant an opportunity for a hearing on matters of fact. Such hearings are a long-
standing procedure within the rules of practice of the Department. The Department chooses
to take such care since, as the IBLA pointed out in the Crawford Case, 1) a mining claim is
property, 2) due process requires that claimants be afforded notice and opportunity for a
hearing and 3) any decision to deny occupancy when such is necessary to develop the claim
could be tantamount to a taking of the right to mine (see the discussion found at 92 ID 208 at
222).

Further, the draft report appears to make much of the five acre threshold, implying that no
controls exist over the operator or occupant. As pointed out by field office comments, the
requirements for information submitted with a notice are not different from those submitted
with a plan of operations. [see 43 CFR 3809.1-3(b) and 3809.1-5(c)]. Construction of a
structure would be a disturbance as contemplated by the regulations and the proponent of the
operation would be required to provide the location, nature, and type of building in the
submission. Failure to do so, could result in a notice of non-compliance and could lead to the
filing of a contest action or a request for a temporary restraining order. In this respect, the
BLM's surface management regulations are no different from the Forest Service regulations.
(36CFR 228).

With respect to occupancy management under the 36 CFR 228 regulations, your report on
page 15 states that these regulations explicitly require prior approval before any structure may
be built on a mining claim. As pointed out by a field office comment, these regulations do
not explicitly require approval of "occupancy" or the placement of buildings. The regulations
have been interpreted by Forest Service offices to find that any occupancy or placement of a
building is a significant surface disturbance, which is therefore subject to a plan of operations.
Plans of operations are thus subject to an approval by the authorized officer. The essential
difference between the 36 CFR 228 regulations and the 43 CFR 3809 regulation is the
existence of a "bright, white line" that defines significance. This delineation of significance
was a direct result of the rulemaking process.

Trial by Magistrate - Throughout the draft report there is a constant theme of making the
resolution of occupancy trespass cases simpler and easier through the "downsizing" of the
FLPMA-basedpenalties. This appears to be based on the strongly held notion among the
BLM field personnel that a reduction in FLPMA penalties from "Class A"
to "Class B" or lesser misdemeanors under Title 18, United States Code will automatically

result in the elimination

District Court Judges
consuming process.

or
In

of the right to trail by jury. Cases would be decided by Federal
U.S. Magistrates without the presence of a jury, eliminating a time
the context of resolving occupancy trespass, your draft report on page

23

 
          
APPENDIX 3
Page 5 Of 6

13 states that the prosecution of a jury trial for a misdemeanor by the U. S. Attorney 's office is
unlikely given the District Court's felony workloads. This is the apparent origin of the field
officials' belief that trial by jury is an impediment to resolution of the trespass and it should
be eliminated through the downsizing of the penalties.

We are pleased to see that as the result of a November meeting between your office and the
BLM headquarters staff, your office added the parenthetical remark, "with the consent of the
defendant" at all points where trial by magistrate was suggested. This parenthetical remark
thereby reflects the provisions of 18 USC 3401(b), which clearly permits the defendant to
consent to trial by the magistrate. Those who choose not to consent are allowed to
proceed before a District Court judge.

On a philosophical basis we fail to see the efficacy of this approach to managing occupancy
trespass. Under the downsizing proposal, trespass on the public lands becomes the functional
equivalent of a "dog-off-leash" charge. We do not believe it is appropriate to manage the
public's resources in such a fashion. If we believe that these resources are valuable, then
occupancy trespass that results in resource damage should merit greater penalty than a "Class
A" misdemeanor, not a lesser one.

Recommendation 1. - Develop an action plan with target dates for resolving the occupancy
trespass cases identified on the work load priorities established by Bureau offices. The plan
should include a targeted number of high profile cases to be pursued through litigation.

Comment - We do not support this proposal for two reasons. First, in an era of declining
budgets, the BLM's Director has consistent y stated that the agency must concentrate on its
core activities. This proposal would divert funding from those activities with little guarantee
of success. Second this proposal creates high profile expectations as well as animosities. We
see no reason to inflame either.

We note the existence of a stand-alone occupancy trespass resolution proposal for southern
Oregon in the early 1980's. Few traces of this proposal exist today. We feel that the only
sustainable approach is to fully integrate management of occupancy into the Bureau's core
activities, consistent with available funding. Our solution starts by taking a simple and quiet
approach, the agency identifies those cases that need management before all others and begins
to take the necessary actions. We do so without fanfare, without diversions created by
publicity and without quotas for litigation. Having started with the first case, if funding
allows we move on to the next case and repeat the process until all of the existing cases are
finished. We litigate only when appropriate and necessary. Finally, we manage new existing
occupancy cases with the pending final Use and Occupancy regulations (43 CFR 3715).

Recommendation 2- Promulgate in their final form the proposed regulations concerning the
unlawful use and occupancy of unpatented mining claims and financial guarantees, including
bonding.

Comment - We support this recommendation and are taking all necessary actions to ensure
their publication.

 
APPENDIX 3
Page 6 of 6

Recommendation 3- Consider seeking appropriate legislative changes to reduce the potential
prison sentences for occupancy trespass from 12 to 6 months to allow District Court judges or
U.S. Magistrate Judges (with the consent of the defendant) to decide occupancy trespass
cases.

Comment - The Bureau strongly disagrees with this recommendation for the reasons
discussed in the general discussion of the report. In addition, this proposal is impolitic and
likely to create adverse public opinion against the Department and the Bureau.

Recommendation 4- Instruct Resource Area Managers to work with local law enforcement
agencies, as appropriate, to develop and implement options to reduce the threat of violence to
Bureau employees in the performance of their duties.

Comment - While we support the concept of this recommendation, and often work in
concert with local law enforcement, we believe that the proper approach is to utilize the
agency's on-board law enforcement capacities. Where necessary, the law enforcement
personnel, in particular, the Special Agents-in-Charge should take the lead in developing the
necessary arrangements, keeping the field managers informed and in the loop.

25

 
APPENDIX 4
Page 1 of 4

BUREAU OF LAND MANAGEMENT GENERAL COMMENTS
  AND OFFICE OF INSPECTOR GENERAL REPLY

Bureau Comments

The Bureau stated that our report did not "adequately describe or evaluate the
existing . . . [Bureau] surface management regulations (43 CFR 3809)." According
to the Bureau, the report: (1) did not state why the regulations were "cumbersome
and expensive"; (2) described the regulations in this manner "uncritically" based on
the word of Bureau field office personnel; (3) did not note that the purpose of the
regulations was to prevent "unnecessary or undue degradation"; and (4) "appear[ed]
to make much of the five acre threshold, implying that no controls exist over the
operator or occupant." The Bureau stated that according to its regulations (43 CFR
3809.1-3(b) and 3809.1-5(c)), "The requirements for information submitted with a
notice [five acres or less] are not different from those submitted with a plan of
operations."

The Bureau also stated that its surface management regulations "contemplated the
management of reasonably incident activities" but did not determine "what was
reasonably incident." Rather, according to the Bureau, other regulations (43 CFR
3712) "address the question of reasonably incidental use." The Bureau further stated
that Forest Service regulations regarding occupancy trespass (36 CFR 228) "do not
explicitly require approval of' occupancy' or the placement of buildings" as stated in
our report and "have been interpreted by Forest Service offices to find that any
occupancy or placement of a building is a significant surface disturbance, which is
therefore subject to a plan of operations."

In addition, the Bureau's response stated that our report discussed the outcome of
the Crawford case, "the principal case cited," with "apparent disapproval." The
Bureau further stated that the report's analysis "misses the point of the case as
discussed by the Interior Board of Land Appeals." According to the Bureau:

In Crawford, the IBLA [Interior Board of Land Appeals] simply
provided the mining claimant an opportunity for a hearing on matters
of fact. Such hearings are a long-standing procedure within the rules
of practice of the Department. The Department chooses to take such
care since, as the IBLA pointed out in the Crawford Case, 1) a mining
claim is property, 2) due process requires that claimants be afforded
notice and opportunity for a hearing and 3) any decision to deny
occupancy when such is necessary to develop the claim could be
tantamount to a taking of the right to mine.

26

 
APPENDIX 4
Page 2 of 4

Office of Inspector General Reply

Occupancy trespass by definition is unauthorized. Our report was not concerned
with "occupancy when such is necessary to develop the [mining] claim." Rather, the
report addressed what we believed to be the key issues involved in resolving
occupancy trespass.  Based on our review and discussions with Bureau field
personnel who dealt with occupancy trespass issues on a continuous basis, we
concluded that the key issues were as follows: (1) Bureau regulations (43 CFR 3809)
allow a mining claimant to disturb up to 5 acres of land on unpatented mining claims
without Bureau approval and (2) Bureau regulations (43 CFR 3712) do not define
the uses that are "reasonably incident" to "prospecting, mining, or processing
operations" on unpatented mining claims. Therefore, we did not provide, nor did we
need to provide, a detailed description or a general evaluation of the existing surface
management regulations (43 CFR 3809) except as they impacted occupancy trespass,
which was the subject of our audit.

We did not "uncritically" accept the statements by Bureau field personnel that
Bureau regulations (43 CFR 3809 and 3712) were "cumbersome and expensive." Our
review of these regulations confirmed the statements made by Bureau field
personnel. We found that surface management regulations (43 CFR 3809), by
allowing a claimant to disturb up to 5 acres (notice-level mining) without Bureau
approval, force the Bureau to react to, rather than anticipate, the occupancy
activities of a notice-level claimant. The Bureau cannot approve a structure in
advance or use its regulations to resolve mining occupancy trespass.  During
Congressional hearings held in response to the August 1990 General Accounting
Office report (see Appendix 2), the Bureau itself admitted that the process was not
satisfactory. At a September 1990 hearing before the Subcommittee on Mining and
Natural Resources, House Interior and Insular Affairs Committee, the Bureau
Director and the Subcommittee stated that Bureau "field staff need a satisfactory
process for administering and enforcing legal requirements." In addition, because
the regulations (43 CFR 3712) do not explicitly define "reasonably incident," the
Bureau can either take no action or become involved in a lengthy and expensive
process, including conducting investigations, surface use determinations, and validity
exams, to challenge occupancies. Because the Bureau does not define "reasonably
incident," the Government must show, as a matter of law, that a "claimant's
residence . . . [is] not reasonably related to mining or attendant operations" (June 29,
1990, memorandum to the Assistant Regional Solicitor, Pacific Northwest Region,
from a law clerk on the subject of occupancy trespass on mining claims).

In its response, the Bureau stated, "Requirements for information submitted with a
notice are not different from those submitted with a plan of operations." The point
of our report, however, was not whether the information requirements were the same
but rather that a plan of operations requires approval by the Bureau and a notice
does not. Our audit disclosed that most occupancy trespass on unpatented mining

27

 
APPENDIX 4
Page 3 of 4

claims occurs at the notice level, or below the 5-acre threshold, and we have
modified our report to emphasize this point.

In our review of "the five acre threshold," we compared Bureau regulations (43 CFR
3809) with Forest Service regulations (36 CFR 228) and found that the Forest
Service does not make the 5-acre distinction but does allow a District Ranger to
determine whether an operation will cause significant surface disturbance, which can
be fewer than 5 acres. According to the Forest Service, structures on mining claims
are deemed significant surface disturbances and therefore require approval through
a plan of operations. In contrast, Bureau regulations (43 CFR 3809.1-3(b)) state,
"Approval of a notice, by the authorized officer, is not required," thereby allowing
a structure to exist without Bureau approval. (Emphasis added.) We agree that
Forest Service regulations implementing the Surface Resources Act (36 CFR 228)
do not explicitly require approval of occupancy. However, other Forest Service
regulations (36 CFR 261) do prohibit "constructing, placing, or maintaining any kind
of . . . structure . . . or other improvement on National Forest system
land . . . without a special-use authorization, contract, or approved operating plan. "
Accordingly, we have revised our report to include the citation for these regulations
(36 CFR 261).

The differences between the regulations of the two agencies as they pertain to
occupancy trespass are also noted in the previously cited June 29, 1990,
memorandum to the Assistant Regional Solicitor, Pacific Northwest Region, which
states:

BLM's [Bureau of Land Management's] regulations differ [from Forest
Service regulations]. The purpose of BLM's surface management
regulations is to prevent unnecessary or undue degradation of the
surface resources of unpatented mining claims. 43 C.F.R. Section
3809.0-1 (1989). In contrast to the Forest Service regulations, an
ap proved operating p lan is required only for operations which will
cause a cumulative surface disturbance of more than five acres. 43
C.F.R. Section 3809.1-4 (1989).  Operators causing a surface
disturbance of five acres or less are required only to notify the agency
before commencing operations; app roval of the notice specifically is
not required. 43 C.F.R. Section 3809.1-3 (1989). [Emphasis added.]

We also reviewed court opinions contained in the Mining Law, 5th Ed., 1995,
Cumulative Supplement, that interpret the application of both the Bureau's and the
Forest Service's regulations. We found that the courts had interpreted Forest
Service regulations to specifically require approval through a plan of operations for
structures. For example:

In United States v. Langley, 587 F. Supp. 1258, 1266 (E.D.Cal. 1984),
the Court held that the claimant's residence is covered by the Forest

28

 
APPENDIX 4
Page 4 of 4

Service regulations and must not exist unless approved under an
operating plan.

In United States v. Burnett, 750 F. Supp. 1029, 1035 (D. Idaho 1990),
the Court held that the maintenance of structures "under the Forest
Service's current policies and the law of this circuit is a significant
surface disturbance which requires an operating plan." The Court
ordered the claimant to remove the structures . . . from the claim
because "without the requisite approval by the Forest Service, the
structures . . . constitute a trespass upon government property." Id. at
1036.

Further, as discussed in our report, the Interior Board of Land Appeals, in handing
down the Crawford decision, discussed the difference between the two agencies in
light of both the United States v. Langley and the Board's decision on Crawford as
follows:

[In the United States v. Langley] the operator. . . was expressly advised
that in order to obtain authorization for his occupancy, he would be
required to show that it was reasonably necessary to the proposed
mining activities. . . . In enjoining [the defendant] . . . from further
occupancy . . . "the maintenance of a fixed residence by defendant
creates a sufficiently significant surface disturbance as to require an
approved Plan of Operations pursuant to 36 CFR 228.". . . It seems
clear that, were the same regulations applicable to appellants' claims
in this appeal [Crawford], an order requiring them to vacate the
premises would properly issue, since no approved plan of operation
covers their activities.  The problem, however, is that the BLM
[Bureau of Land Management] regulations are substantially different
from those of the Forest Service, and the court precedents applying
the Forest Service regulations are, accordingly, not particularly
germane.

We do not discuss the outcome of the Crawford case "with apparent disapproval,"
as stated in the Bureau's response. We support "due process," and our report was
not concerned with valid unpatented mining claims. On the contrary, we cited the
Crawford case to show that at notice-level mining, the Bureau could not prevent
claimants from establishing residencies on mining claims. As the Board stated in the
Crawford case (86 IBLA 350, 392 (1985)):

If it was BLM's [Bureau of Land Management's] intent to require its
approval prior to the establishment of residency on mining claims,
BLM need only amend its regulations so that they reflect such an
intent.

29

 
 

APPENDIX 5

STATUS OF AUDIT REPORT RECOMMENDATIONS

Finding/
Recommendation
Reference    Status
1 and 3   Unresolved

2 and 4   Resolved; not
     implemented

    Action Required
Respond to the revised
recommendations, and provide a plan
identifying actions to be taken, including
target dates and titles of officials
responsible for implementation.

No further response to the Office of
Inspector General is required. The
recommendations will be referred to the
Assistant  Secretary for Policy,
Management and Budget for tracking of
implementation.

30

 
   SHOULD BE REPORTED TO
THE OFFICE OF INSPECTOR GENERAL BY:

Sending written documents to:             Calling:

Within the Continental United States

U.S. Department of the Interior         Our 24-hour
Office of Inspector General           Telephone HOTLINE
1550 Wilson Boulevard            1-800-424-5081 or
Suite 402                 (703) 235-9399
Arlington, Virginia 22210

TDD for hearing impaired
(703) 235-9403 or
1-800-354-0996

Outside the Continental United States

Caribbean Region

U.S. Department of the Interior         (703) 235-9221
Office of Inspector General
Eastern Division - Investigations
1550 Wilson Boulevard
Suite 410
Arlington, Virginia 22209

North Pacific Region

U.S. Department of the Interior         (700) 550-7279 or
Office of Inspector General           COMM 9-011-671-472-7279
North Pacific Region
238 Archbishop F.C. Flores Street
Suite 807, PDN Building
Agana, Guam 96910

 
 

HOTLINE

1550 Wilson Boulevard
Suite 402