09/13/2021
We have been somewhat quiet on here as we have attempted to let the United States Forest Service reverse course and stop their TYRANNICAL THEFT of our property but that hasn't happened....We will post the most recent correspondence over the course of a few posts... This👇 one is long but gives the most detailed synopsis of the situation... This copy/pasted email is to the Regional Forester Frank Beum for region 2 as another plea from us for DUE PROCESS...
Regional Forester(s),
My name is Cody Brewer and I own five(5) unpatented mining claims commonly known as the Tony Mine located in the White River National Forest(Dillon Ranger District) from 2012-present in which I am currently attempting to mine in between regulatory filings/correspondence with Dillon Ranger District officials. I previously filed an appeal(attached PDF) on 8/9/21 with the District Ranger and subsequently the White River Forest Supervisor with grievances directly set forth in 36 CFR § 214.4 (B)1,2,3 (C)1. A response(attached pdf) to those appeals by the Forest Supervisor was received on 8/20/21 and states that "As a result of your appeal not meeting the regulatory requirements set out in 36 CFR § 214, I must set aside your appeal and request for stay without further review." This response and justification for said response is as bogus as the day is long and I will not stand to be treated with such disrespect from a public official. I have since responded to both the Forest Supervisor and the District Ranger in an attempt to have a cordial dialogue of facts in relation to the Tony Mine, but those attempts have fallen on deaf ears if any ears at all. I will attempt to make a brief overview of the entire situation and then formally appeal for "Discretionary Review" by you the Regional Forester.
My grandfather Willie Points owned these same claims from 1979-1988. The claims were then sold to a Jimmy Burkeen who owned the claims from 1988-2012. I, Cody Brewer then purchased the claims in 2012 and still own them. At my time of purchase there were multiple structures on the mining claims that had supported mining operations over the previous century. During the Burkeen tenure of the claims, Mr Burkeen attempted to sell the claims and structures with a local real estate agent in Summit County and loosely implied in the real estate listing that the claims/structures were a vacation destination which we all know to be false based on the mining laws/codes/etc. This attempted sell by Mr Burkeen brought attention to the mining claims and operation by the USFS who in turn notified(approx 2005) Mr Burkeen that he must reclaim the mine site due to lack of mining. According to Mr Burkeen, he then(2006-2008) removed his personal property from the structures/mine site because the USFS advised him to do so. Mr. Burkeen did continue to file yearly assessment paperwork with the BLM even after removing his personal property from the mine site. The mine site was then in an "unknown" state from approx 2007-2011 when I inquired to Mr Burkeen about purchasing the claims. In doing so I contacted the USFS to inquire upon the claims status. The USFS advised me that the claims were up to date with the BLM but were unsure of the status and direction of the structures because they were not sure who owned or was responsible for them. I then produced documents(bill of sale) for the cabin/equipment on the mine site from Willie Points to Jimmy Burkeen that showed ownership to the claimant. These documents and their recording location in the Summit County Recorders Office was given to the USFS prior to my purchase of the claims. I then purchased the claims in 2012 at which point I began utilizing the cabin and other structures to support my mining operation at the Tony Mine. I was directed by Paul Semmer to submit a Notice of Intent to Operate which I did in April 2013. I was then notified that I needed to submit a Plan of Operation since I was proposing to continue utilizing the cabin as a bunkhouse and tool storage to support the mining operation which I did on 7/11/13. During this same time period in 2013, I was notified that there was already funding in place to "reclaim" the Tony Mine Site by the USFS due to the assumption that the mine site was abandoned because Mr Burkeen removed his personal property from the mine site. Mr. Semmer(USFS) emailed me the proposed reclamation plan which was to remove all structures/equipment from the mine site as part of the reclamation. I insisted to Mr. Semmer that I was already utilizing the cabin and newer outhouse for my mining operation plus I might possibly use the compressor and air pipe for future mining at the Tony Mine. As a result, the cabin, outhouse, compressor, and air pipe was not reclaimed as part of the 2013 USFS reclamation project at the Tony Mine Site. As part of the reclamation project there was one item in the cabin that contained asbestos and needed immediate abatement according to the report forwarded to me by email. As I was already using the cabin, Mr. Semmer contacted me for permission to enter the cabin and remove the item containing asbestos which I granted. Additionally, Mr. Semmer gave me signs to post on the gate that specifically say "Authorized By Special Use Permit." I was then directed to modify my previously submitted Plan of Operations and re-submit which I did on 5/11/14. This plan was never approved or denied nor was an extension of 60 days requested nor was I notified of any changes that needed to be made nor was an environmental impact study requested all of which are laid out in in the Forest Service Manual 2817.23 and ultimately in 36 CFR § 228.5(A). I was left to operate under the impression that my submittal of said Plan of Operations on 5/11/14 was sufficient for continued mining at the Tony Mine Site along with continued use and justification of remaining structures at the Tony Mine Site. From May 2014-May 2018 I did remain in communication with Paul Semmer who knew that we were continuing mining operations and utilization of the remaining structures at the Tony Mine Site. Please note that this is a lode mining operation with very little surface disturbance so while mining operations continued during this time, our foot print was rather small. On May 8th, 2018, I received a letter from the USFS that responded to my 2013 Plan of Operations(not even my most recently submitted POO in 2014) in two parts:(1) a review of the status of the government owned structures on the claim and (2) a review of the proposed 2013 POO. Upon reading the entirety of the letter, I hypothesized that I was in for a "bumpy road" due to the large amount of incorrect/incomplete data and also the fact that the USFS was just now reviewing my submitted POO years after submittal plus it wasn't even the most recent POO submitted. I then replied to the May 8th, 2018 letter which began a reciprocating correspondence between the USFS and I all the way up to current day. During this correspondence, I have continually provided documents to correct and update the USFS and BLM records in regards to the Tony Mine Claims. I have also maintained that the remaining structures at the Tony Mine Site are my property and not the United States as was implied in the May 8th, 2018 letter and provided numerous documents to prove my ownership. Moving forward in 2018, it was requested by USFS officials that I submit another Plan of Operations in which I did on 8/6/18. While there was some communication in the fall of 2018(including a meeting in the cabin at the mine site by Mr Semmer and myself while I was on site mining), there was never a formal response to my POO. Just like my previously submitted POO, this 2018 POO was never approved or denied nor was an extension of 60 days requested. It wasn't until April 25, 2019(over 230 days later) that a response to my POO was given which as described above is an obvious failure by the USFS to abide by federal code. Next, a face to face meeting between myself, my wife, and District Ranger Bill Jackson at the Dillon Ranger District office was a success to me as Mr Jackson stated in a follow up email on 8/26/19 that "After further consideration of our conversation I have decided to temporarily halt any actions this year to have you remove personal property at the cabin. We will reevaluate the research we have done to clarify the history of ownership on the claim this fall, in anticipation of a final decision this winter." Again, I continued mining operations and utilized the Tony Mine structures for a bunkhouse and tool storage as described in my 2018 POO up until the next letter I received on May 6th 2021. This letter again uses known bad data in an attempt to justify that the USFS(ultimately the US Government) owns the structures at the Tony Mine Site. Again, a reciprocating correspondence engaged until this past week(9/1/21) when I was notified by District Ranger Adam Bianchi that my personal property had been impounded and secured in an off site location which he specifically told me would not happen in a face to face conversation that occurred on 8/12/21 between Adam Bianchi, Paul Semmer, Willie Points(past claimant), and myself. During this conversation, my above listed appeal was ongoing and Mr Bianchi assured me that regardless of the appeal outcome, that my personal property would remain on site at the Tony Mine until I could retrieve it this fall as long as it was a reasonable time frame which I agreed to as a "show of good faith" under the conditions that regardless of the appeal outcome and even though I would remove my personal property I was not conceding my ownership of the cabin. As I hope you can imagine, the email from Adam Bianchi notifying me that my personal property was removed without my permission and after he assured me that it wouldn't be, was a sure "kick in the gut" that not only left me frustrated but even furious. I would be happy to provide affidavits from myself and Willie Points in regards to what was said at the meeting on 8/12/21.
I will note a short list of absolute grievances against the USFS in no particular order:
-Continued harassment of my family and I with inaccurate and incomplete data to justify theft of our structures at the Tony Mine site
-Inability to provide hard evidence/data that the USFS owns the structure at the Tony Mine site...The USFS has maintained since the 5/8/2018 letter that "Since the mining claims on which these structures are located were abandoned around 1980 prior to your 2012 acquisition of the mining claim group, ownership of the structures reverted to the land owner/manager; in this case the Forest Service. Neither the relocation of the mining claim in 1984 by the previous claimants(Johnna and Willie Points), its sale to Mr. Burkeen in 1988, its relocation by Mr. Burkeen in 1993, nor its sale and relocation by you in 2012 have given the claimants ownership of the fixed structures.".....Two points: (1) I provided receipts to the USFS from the BLM to Willie Points for yearly assessment work done and filed for years 1979-1984 so obviously this above statement is false and should be addressed by the USFS. (2) The above statement uses the term "abandoned" as justification for government taking ownership of the structures located on the Tony Mine site. As mentioned in point (1), the "abandonment" in 1980 is a bogus claim by the USFS. Additionally, the legal definition for "abandon" according to Cornell Law is "Personal property left by an owner who intentionally relinquishes all rights to its control. Real property may not be abandoned." The USFS would have a hard time implying, proving, or showing that any property was intentionally relinquished with regards to structures at the Tony Mine site. Furthermore, I have insisted on an actual date(as in a date on the calender) in which the USFS believes that they took over ownership of the structures on the claims?
-The obvious failure of the USFS and its representatives to abide by federal code as mentioned above
-The complete lack of due process in regards to structure ownership on the claims despite the mountain of proof/evidence that I have
-The complete lack of due process in regards to the appeal filed on 8/9/21
-The complete "stonewalling" by the USFS in regards to hearing facts, data, documents provided from me in order to provide a "just" and right outcome to this situation
I also urge the you(USFS) to study case law re: Edgar v. United States. Not only did this case result in a summary judgement for the plaintiff(Edgar) but also a removal of qualified immunity for the USFS official involved in the case because of the lack of due process granted to the plaintiff. I continue to hold hope that a joint resolution that respects my rights as a claim owner and property(structures) owner will come to fruition and therefore a trip to the court system can be averted for all parties!
As I previously proposed to District Ranger Adam Bianchi, I will have all my personal property removed from the mine site by 10/31/21(current mining season) with exception to the structures. Furthermore, I will be on site at the claims September 13th-19th, 2021 for a multi-purpose trip that includes mining, winterization of the mine, and the removal of all personal property from the mine site with exception to the structures themselves. I fully expect and even demand that any and all personal property taken by the USFS during the so called impoundment process be returned to the mine site without incident as was originally agreed upon. I will also be utilizing the cabin and other structures while on site from 9/13/21-9/19/21 and then will remove all personal property from the structures until our current impasse is resolved. Please remove any locks, bars, chains, etc used to restrict entry to the structures before our arrival. If any locks, bars, chains, etc are still in place on the structures upon our arrival then we will remove them and please let it be known that those restrictions will be considered trespassing on my property and charges filed accordingly. I look forward to peaceful resolution to the current situation by all parties.
Gentlemen,
Please let this serve as an appeal for "discretionary review" by the Regional Forester as set forth in 36 CFR § 214.7(b) to the ongoing process regarding the Tony Mine and its five associated claims. I believe the file code for the main case is #2810 along with #5330 and #1570 as listed on the latest correspondence from the USFS. The original appeal is directly authorized in 36 CFR § 214.4 (B)1,2,3 (C)1 as an appealable decision.
Furthermore, as meeting the requirements of “Appeal content” under 36 CFR § 214.8 please recognize specifics requested as:
1. Appellant – Cody Brewer, P.O. Box 68, Choctaw, OK 73020, 405-823-8095, [email protected]
2. This appeal is based on the ever changing paths the USFS has taken to deny(since May 2018) myself use of existing private property structures located at the Tony Mine Site. These existing structures are vital to the mining operation at the Tony Mine as explained numerous times in emails and in person. This appeal is more specifically aimed at the email sent by District Ranger Adam Bianchi sent on August 4th, 2021 with accompanying “NOTICE OF IMPOUNDMENT.” This email seems to be the final “decision” by the USFS to deny use of my structures located at the Tony Mine Site. This email lists two reasons as to why the use of existing structures is denied and are paraphrased as:
· No approved Plan of Operations for use of structures exists due to the USFS opinion that they are not needed based on the level of mining at the Tony Mine.
· There is asbestos present “throughout” the cabin and until mitigated the USFS would not be interested in approving use of the structure.
1. Counter point 1 – I have submitted three Plan of Operations(7/11/13, 5/11/14, and 8/6/18) via email with none of the POO being ever approved nor denied. Furthermore, the USFS is directly at fault for not abiding by 36 CFR § 228.5 A and A(5) which explicitly lays out how the “authorized officer” must respond to a submitted POO. It specifically calls for a response within 30 days and a possible extension of an additional 60 days to the POO response. In this case it was over 230 days until a USFS official addressed(but didn’t approve or deny) my POO. Essentially it is not fair or equitable to not only imply but to actually use as reason for denial that I don’t have an approved POO while you(USFS) blatantly disregarded federal code.
2. Counter point 2 – I am assuming that the USFS is still utilizing the September 25th, 2012 Asbestos Inspection from Sunrise Environmental Inc as the guiding document for using asbestos related issues at the Tony Mine(and as an excuse to not utilize the existing structure(s) at the Tony Mine). According to that inspection/report there were five materials in the cabin structure(only structure still on site at the Tony Mine that had asbestos). Detailed on pages 16 & 17 of that report, there were two of those five materials that needed attention due to the fact that the materials could possibly become friable during demolition activities. The good news is that those two materials(gray cementitious panels and gray cementitious pipe) have already been abated by a USFS contractor. The remaining three materials that are still at/in the cabin were recommended by Sunrise Environmental Inc to stay in place as they were non-friable(and would remain non-friable unless acted upon by extreme conditions listed in the report) and didn’t pose a hazard. The report also goes on to note that the Colorado Department of Public Health and Environment does not require the removal of materials that are non-friable and that will remain non-friable during demolition. With that said, none of the above listed materials contained greater that 1% asbestos. The asbestos excuses seem to be another in ever changing directions from the USFS.
Additionally this appeal is based on the refusal to hear the original appeal based on the bogus claim that it doesn't meet the regulatory requirements as noted in the 8/20/21 letter(attached pdf file) from Forest Supervisor Scott G. Fitzwilliams. Listed below are the assertions made by Mr Fitzwilliams in that letter and also my counterpoint with absolute reasoning for meeting the appeal requirements as set forth in 36 CFR § 214.4 (B)1,2,3 (C)1
-In paragraph 5(bullet point 2)...You admit that the "USFS has neither approved nor denied your Plan of Operations as required for an appeal under 36 C.F.R. 214.4(b)(1)-(3).".....As a reminder, I have submitted one(1) Notice of Intent and three(3) Plan of Operations since 2013 as requested by the USFS. None of the POO have ever been approved nor denied yet you(USFS) repeatedly use the lack of an approved POO as reasoning for denying use or justification of the structures/cabin at the Tony Mine Site. Furthermore it seems very convenient that my appeal has been dismissed because it "does not fit the criteria listed therein" of the above listed federal code because you have just been sitting on my submitted POO(s). Also in reference to this point, my appeal noted that the USFS is in direct violation of 36 CFR § 228.5(A) which explicitly lays out how you(USFS) must respond to a submitted POO. You have been in violation of this federal code not just once but twice. Furthermore, it is absurd to deny "hearing" an appeal because you can't do your job and respond to a submitted POO as strictly laid out in 36 CFR § 228.5(A).
-In paragraph 6(bullet point 3)...You claim that "The Forest Service has not modified, approved, or revoked any special use authorization related to the Tony Mine Site cabin" which my appeal addresses as well. While there may not be a signed agreement for special use authorization relating to the Tony Mine Cabin, there is absolutely implied use authorization of the Tony Mine Site cabin on numerous occasions. In 2013, there was already funding in place to "reclaim" the Tony Mine Site by the USFS due to the assumption that the mine site was abandoned. Mr. Semmer(USFS) emailed me the proposed reclamation plan which was to remove all structures/equipment from the mine site as part of the reclamation. I insisted to Mr. Semmer that I was already utilizing the cabin and newer outhouse for my mining operation plus I might possibly use the compressor and air pipe for future mining at the Tony Mine. As a result, the cabin, outhouse, compressor, and air pipe was not reclaimed as part of the 2013 USFS reclamation project at the Tony Mine Site. As part of the reclamation project there was one item in the cabin that contained asbestos and needed immediate abatement according to the report forwarded to me by email. As I was already using the cabin, Mr. Semmer contacted me for permission to enter the cabin and remove the item containing asbestos which I granted. Additionally, Mr. Semmer gave me signs to post on the gate that specifically say "Authorized By Special Use Permit." Mr. Semmer and other USFS representatives also met me at the Tony Mine Site multiple times and even convened a meeting inside the cabin with all parties clearly knowing that the cabin was being utilized as a bunkhouse and tool storage. Furthermore, while a written contract may not have been in place, there was obviously a spoken or "implied" special use permit in place between myself and the USFS or the USFS recognized the cabin as my property therefore my appeal listing 36 C.F.R. 214.4(c)(1) is absolutely valid as the the USFS has either modified or revoked my special use permit.
3. The Tony Mine and five associated claims have been under my ownership since 2012 with that date also being the beginning of relationship between myself and the USFS. I have always attempted to be courteous, amicable, and understanding of our relationship and the rules/regulations that we must follow.
4. As explained multiple times both in correspondence and in conversations, the ability to stay/lodge on site at the Tony Mine along with the ability to store tools and equipment on site is vital to the feasibility of successfully mining at the Tony Mine site. The short work season at the Tony Mine due to weather conditions and road closures make time a very valuable commodity. The ability to utilize an existing structure on site at the Tony Mine not only allows us to maximize our time at the mine by cutting down on travel time(approximately one hour each way to the closest lodging) but also cuts down on road degradation due to our equipment traveling up and down road forest road 6.2. Additionally, the cost of lodging in Summit County is among the highest in the country and is not a feasible option especially since there is already a lodging structure already on site at the Tony Mine that is justified by these previously listed points along with the current level of mining. Essentially, if on site lodging and tool/equipment storage during operations is denied then any hopes of having a successful mining operation will be dreams rather than a reality. Ultimately, the adverse effects of the current USFS decision will result in total failure of mining operations at the Tony Mine site.
5. Relevant facts
a) I have always tried to maintain an open line of communication with the USFS.
b) I have cleaned up and secured the Tony Mine site and structures.
c) I have greatly reduced fire load due to beetle killed trees around the Tony Mine while using much of the wood to assist the mining operation.
d) I have tried to tread as lightly as possible not only in traveling to the Tony Mine site but also at the Tony Mine site as to minimize our surface disturbance impact.
e) I have helped time after time in updating your records to more accurately describe the history of the Tony Mine.
f) I have submitted multiple plan of operations as previously listed and essentially done everything that you(USFS) have asked me to do in regards to both the administrative side as well as at the mine site.
g) I have continually worked towards solutions at the Tony Mine while I don’t feel the same has been reciprocated by you(USFS).
h) The continued lack of any sort of due process by the USFS is probably the most troubling relevant fact that should be noted.
6. Discussion of issues or policies violated…As previously listed there was a direct violation of 36 CFR § 228.5 A by the USFS on multiple occasions. Furthermore, there has been a total lack of due process from day one of our correspondence. Time after time, you have made decisions based on inaccurate and/or incomplete information and data. I have repeatedly provided accurate and complete documents from the past forty-four years in an effort to help us all have a better understanding of the situation. Furthermore, it has not been mentioned one time to me that there was a clear cut appeal process outlined in the code of federal regulations.
7. As mentioned multiple times above, I have reached out time and time again in an effort to maintain an open line of communication. This has continued to be true as we tried to work to an agreement on the current situation/decision. Specific dates of outreach include but not limited to: 7/11/13, 5/11/14, 5/17/18, 7/17/18, 8/6/18, 7/23/19, 8/1/19, 6/9/21, 7/23/21. Many times over the past few years I have been optimistic that logic and common sense would prevail in the final decision and while I am appreciative of your time over the years, I do not feel that anyone at the USFS has been open to receiving facts or data that could change their pre-determined trajectory in regards to this situation.
8. It is my hope that we can find common ground to finally work toward a mutually beneficial decision. A decision that respects not only my rights as a mining claimant but also the fact that I just as you want to respect the land and leave it better than I found it. This can be achieved by utilizing the existing structures for our mining operation at the Tony Mine and this will not only minimize current and future surface disturbance but also preserve a small bit of history for the time being.
9. I have already provided page after page of authentic documents to help provide the most accurate historical timeline of the Tony Mine. I still have hundreds of documents that relate to the Tony Mine with some of them possibly beneficial to this decision. I am willing to bring all documents in my possession to a meeting or oral presentation if it is thought to help? Additionally it has been stated multiple times by you(USFS) that the claims were abandoned in 1980 and lasting until 1984 when the claims were supposedly relocated. You give this reason as to why the cabin was at that point forfeited to the surface owner(USFS) and therefore I don’t have ownership of the structures/equipment. I have repeatedly cried foul to your continued harassment and use of faulty data to support your agenda as I am again currently. As stated above, I have already provided you with numerous documents to update your data but at some point the burden of evidence(accurate evidence) must be placed on the shoulders of the USFS. Even as recently as your letter dated 5/6/21 you imply that there was no assessment work filed with the BLM for the 1980-1984 period and that what I submitted only shows that it(assessment paperwork) was filed with the Summit County Recorders Office. In paragraph 1 on page 2 of that letter, you have highlighted in bold, “The claimant must deal directly with BLM on issues dealing with the proof of assessment work, since they are the agency responsible for the administration of miming claims on federal land.” (please note the misspelling of “miming claims” as me just copying what you sent) Please see attached documents(receipt for assessment work from the BLM for years 1979-1984) as again more evidence provided by me that showcases your inability to provide factual and accurate information regarding the Tony Mine site and our current situation.
10. I, Cody Brewer request for an oral presentation under 36 CFR § 214.16
11. I Cody Brewer request for a stay under 36 CFR § 214.13
i) As I am appealing this decision, an impoundment process has been initiated for the Tony Mine cabin and my personal property in and around the cabin. It is imperative that a stay is granted immediately so that the impoundment process is not only halted but reversed. Furthermore, it is only fair that the stay is granted as we continue to work through this situation and recognize due process. If a stay is not granted then not only will it create an undue burden both on myself and also the USFS.
ii) As listed just above, if a stay is not granted it will not only create an undue burden on myself but also on the USFS and its resources. We have been utilizing the cabin successfully since 2012 with minimal surface disturbance to the forest. There is no reason to think that the situation of the past nine years can’t continue until this appeal process is exhausted.
iii) Not only would my personal resources be exhausted by a stay not being granted but also the USFS resources will take a hit as well. There are a limited number of hours in the day along with a limited number of available personnel so lets use our time and manpower efficiently and utilize both to work towards a solution at the Tony Mine.
In closing, I look forward to working with you(USFS) to achieve a mutually beneficial decision that respects the land and the long standing mining laws and traditions of the United States!
Sincerely,
Cody Brewer
9/4/21
