The Consequences of This Valuable Property Establishing Grant
REQUIRING NO MORE PERMISSION THAN THE ACT APROVED JULY 26, 1866, YOUR GRANTED RIGHT OF ACCESS TO YOUR PUBLIC DOMAIN IS FOUND AT
SECTION 8
1 SEC. 8. And be it further enacted, That the right of
2 way for the construction of highways over public lands, not
3 reserved for public uses, is hereby granted.
IN THE SENATE OF THE UNITED STATES. JULY 19, 1866. Ordered to be printed. AMENDMENT 1 SEC. 5. And be it further enacted, That as a further 1 SEC. 6. And be it further enacted, That whenever any 1 SEC. 7. And be it further enacted, That the President 1 SEC. 8. And be it further enacted, That the right of 1 SEC. 9. And be it further enacted, That whenever, by 1 SEC. 10. And be it further enacted, That wherever, prior 1 SEC. II. And be it further enacted, That upon the sur-
17 land adjoining shall be sold subject to this condition.
2 location and entry of a mine shall be upon unsurveyed lands,
3 it shall and may be lawful, after the extension thereto of the
4 public surveys, to adjust the surveys to the limits of the
5 premises according to the location and possession and plat
6 aforesaid, and the surveyor general may, in extending the
7 surveys, vary the same from a rectangular form to suit the
8 circumstances of the country and the local rules, laws, and
9 customs of miners: Provided, That no location hereafter
10 made shall exceed two hundred feet in length along the vein
11 for each locator, with an additional claim for discovery to the
12 discoverer of the lode, with the right to follow such vein to
13 any depth, with all its dips, variations, and angles, together
14 with a reasonable quantity of surface for the convenient
15 working of the same as fixed by local rules : And provided
16 further, That no person may make more than one location
17 on the same lode, and not more than three thousand feet shall
18 be taken in any one claim by any association of persons.
2 condition of sale, in. the absence of necessary legislation by
3 Congress, the local legislature of any State or Territory may
4 provide rules for working mines involving casements, drain-
5 age, and other necessary means to their complete develop-
6 ment; and those conditions shall be fully expressed in the
7 patent.
2 adverse claimants to any mine located and claimed as afore-
3 said, shall appear before the approval of the survey, as pro-
4 vided in the third section of this act, all proceedings shall be
5 stayed until a final settlement and adjudication in the courts
6 of competent jurisdiction of the rights of possession to such
7 claim, when a patent may issue as in other cases.
2 of the United States be, and is hereby, authorized to establish
3 additional land districts and to appoint the necessary officers
4 under existing laws, wherever he may deem the same neces-
5 sary for the public convenience in executing the provisions
6 of this act.
2 way for the construction of highways over public lands, not
3 reserved for public uses, is hereby granted.
2 priority of possession, rights to the use of water for mining,
3 agricultural, manufacturing, or other purposes, have vested
4 and accrued, and the same are recognized and acknowledged
5 by the local customs, laws, and the decisions of courts, the
6 possessors and owners of such vested rights, shall be main-
7 tained and protected in the same; and the right of way for
8 the construction of ditches and canals for the purposes afore-
9 said is hereby acknowledged and confirmed: Provided, how-
10 ever, That whenever, after the passage of this act, any person
11 or persons shall, in the construction of any ditch or canal,
12 injure or damage the possession of any settler on the public
13 domain, the party committing such injury or damage shall be
14 liable to the party injured for such injury or damage.
2 to the passage of this act, upon the lands heretofore designated
3 as mineral lands, which have been excluded from survey and
4 sale, there have been homesteads made by citizens of the
5 United States, or persons who have declared their intention
6 to become citizens, which homesteads have been made, im-
7 proved, and used for agricultural purposes, and upon which
8 there have been no valuable mines of gold, silver, cinnabar
9 or copper discovered, and which are properly agricultural
10 lands, the said settlers or owners of such homesteads shall
11 have a right of pre-emption thereto, and shall he entitled to
12 purchase the same at the price of one dollar and twenty-five
13 cents per acre, and in quantity not to exceed one hundred and
14 sixty-acres ; or said parties may avail themselves of the pro-
15 visions of the act of Congress approved May twenty, eigh-
16 teen hundred and sixty-two, entitled "An act to secure
17 homesteads to actual settlers on the public domain," and acts
18 amendatory thereof.
2 vey of the lands aforesaid, the Secretary of the Interior may
3 designate and set apart such portions of the said lands as are
4 clearly agricultural lands, which lands shall thereafter be sub-
5 ject to pre-emption and sale as other public lands of the United
6 States, and subject to all the laws and regulations applicable
7 to the same.
Section 1 and generally Section 8 Declare the property vesting as of the date of the legislative grant, in this case 1866, upon acceptance. Granted Right
This following is but one evidence that this grant of property, available to everyone today, is not subject to administrative interference or obstruction, whether or not by license, permit, other form permission, closure, or by criminal citation; the extortive utilization of which is criminal and a plain error failure of duty for any judge to disregard.
Once it is understood that Section 8 does not limit access to private inholdings, as the following case relates, or does not care about the type of vehicle used as in this case a motorcycle on a "closed" Section 8 Highway, it may be more fully appreciated that there is no limitation as to access as the following Section 1 analysis by the Court of Appeals for the Ninth Circuit confirms.
prevails administrative authority:
50 Fed.Appx. 867, 2002 WL 31553938 (C.A.9 (Mont.))
(Not Selected for publication in the Federal Reporter)
United States Court of Appeals,Ninth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Steve A. HICKS, Defendant-Appellant.
No. 01-30146.
D.C. No. CR-00-00001-DWM.
Argued and Submitted Nov. 5, 2002.
Decided Nov. 14, 2002.
Corporate employee was convicted in the United States District Court for the District of Montana, Donald W. Molloy, Chief Judge, of operating motorcycle in area of National Forest closed to motor vehicles by Forest Service closure order, and he appealed. The Court of Appeals held that employee of corporation that owned subsurface mineral rights in national forest was not subject to Forest Service closure order that exempted landowners.
Reversed and remanded.
411 Woods and Forests 411k8 k. Forest Reservations, Preserves, or Parks. Most Cited Cases
Corporation that owned subsurface mineral rights in national forest was “landowner,” and thus corporate employee was not subject to Forest Service closure order that exempted landowners from prohibition against operating motor vehicles in national forest. 36 C.F.R. § 261.55(b).
*867 Appeal from the United States District Court for the District of Montana, Donald W. Molloy, Chief District Judge, Presiding.
Before TROTT, T.G. NELSON and THOMAS, Circuit Judges.
MEMORANDUM FN*
FN* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
**1 Steve A. Hicks (“ Hicks”) appeals pro se the district court's affirmation of his conviction in magistrate court for operating a motorcycle in an area of Lolo National Forest closed to motor vehicles by a Forest Service closure order, in violation of 36 C.F.R. § 261.55(b). Hicks drove a motorcycle on a Forest Service trail while acting as an agent of Kenton Lewis (“Lewis”), an owner of subsurface mineral rights in Lolo National Forest. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse because Hicks's conviction is based upon a plain legal error.
1. Standard of Review
This court reviews for plain error when an appellant raises an issue on appeal that the appellant did not raise before the lower court. Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). The Forest Service closure order exempts landowners from its provisions, but Hicks did not rely upon the landowner exemption before the magistrate court. Hence, we review for plain error. This court has discretion to grant relief under the plain error standard if there has been (1) an error; (2) that is plain; and (3) *868 affects substantial rights. Id. at 389, 119 S.Ct. 2090.
2. Both Lower Courts Committed A Plain Error By Determining The Landowner Exemption Did Not Apply To Hicks
Mineral rights are ownership in land, and therefore Lewis is a landowner. See, e.g., United States v. Shoshone Tribe of Indians of Wind River Reservation in Wyo., 304 U.S. 111, 116, 58 S.Ct. 794, 82 L.Ed. 1213 (1938) (with respect to question of ownership, “[m]inerals ... are constituent elements of the land itself”); British-American Oil Producing Co. v. Bd. of Equalization of State of Mont., 299 U.S. 159, 164-65, 57 S.Ct. 132, 81 L.Ed. 95 (1936) (finding a mineral estate an estate in land); Texas Pac. Coal & Oil Co. v. State, 125 Mont. 258, 234 P.2d 452, 453 (1951) (“[l]ands as a word in the law includes minerals”). We need not decide whether the term “landowner” as it is used in Forest Service regulations and orders always includes owners of mineral estates. Here, the government conceded at oral argument that Lewis is a landowner under the terms of the closure order before us and thus exempt from this closure order. The landowner exemption in this closure order must necessarily apply to agents of landowners. For example, corporate landowners can only access their land through agents. Hicks, as Lewis's agent, is therefore also exempt.
Because the trial courts did not recognize mineral rights as ownership in land, and because this error adversely affected Hicks's entitlement to the landowner exemption, we exercise our discretion to correct this plain error.
REVERSED AND REMANDED WITH AN INSTRUCTION TO ENTER A JUDGMENT OF NOT GUILTY.
C.A.9 (Mont.),2002.
U.S. v. Hicks
50 Fed.Appx. 867, 2002 WL 31553938 (C.A.9 (Mont.))
END OF DOCUMENT
Read Closely.
"Transportation" may be prohibited, but the right of ingress and egress by private entry cannot be.