Mining of the National Forest

Joe Gatins

A series of recent court actions playing out in federal courthouses across north Georgia are billed as little more than legal housecleaning—to secure clear and complete title to mining and minerals rights on Chattahoochee National Forest land. That’s how the USDA Forest Service sees it.

But some in the conservation community wonder if the legal maneuvering is quite as routine as the Forest Supervisor’s office in Gainesville would make it out to be. “I’ve got a serious concern about it,” said Ralph Shaw of Habersham County, a trophy fishing guide, chef and forest activist who’s previously tangled with forest officials over local timbering programs. He’s concerned the Forest Service might encourage mining in the Chattahoochee after all the drilling rights are secured. He points to events in adjacent Sumter National Forest, where a private concern recently sought a permit to mine a commercial vein of gold on public forest lands. “I really wonder why those mineral rights are so important now,” Shaw said.

Currently, there are no permits for commercial mining or exploration on the Chattahoochee National Forest. As explained by the Forest Service and the U.S. Attorney’s office shortly after the court cases were initiated in October of 2000, the court proceedings represented a legal housecleaning. “Clearing the title will enable the Forest Service to more effectively manage the land and restrict mineral development to areas appropriately designated by the Forest Land and Resource Management Plan,” a Forest Service spokesman said two years ago. That’s still the goal in the wake of the September 11 attacks, a spokeswoman for the Forest Supervisor’s office in Gainesville said in early February. “It’s more like a pre-emptive thing,” said Patrick Crosby, a spokesman for the U.S. Attorney’s office in Atlanta, whose assistants are filing the cases. “It’s a routine type of thing…to make sure someone won’t tear up the land.”

At issue in the latest round of legal cases (a similar round of suits was filed in 1994), are the remaining subsurface mining and mineral rights to some 63,000 acres of forest land stretching from Rabun to Murray counties, 15 counties in all. As explained by Forest Service officials, the title problems arose in the early 1900s, when the USDA Forest Service acquired or condemned the more than 750,000 acres that now comprise the Chattahoochee National Forest. In many cases, the mineral rights belonged to someone other than the owners of the land itself and were not properly transferred to the government’s possession generations ago.

The court cases, all based on the state of Georgia’s Dormant Minerals Act, allow today’s landowner, the Forest Service, to claim underlying mineral rights if the minerals have not been taxed or worked within the preceding seven years. A Forest Service consultant has done the painstaking legal research to prove those facts in the case of each tract in question, according to court affidavits. (The same law also is used, if infrequently, when private landowners want to make sure they own the mineral rights under their land.)

It’s instructive to see how such a case proceeds. In Rabun County, which takes in the Georgia portion of the Chattooga Wild and Scenic River corridor, a total of 59 landowners and former owners and their descendants, involving 28 tracts of land, were listed on the court pleadings. The defendants (mostly descendants of the original owners) do not have to be served in person. The government is given leave to publish notice of the suit in local newspapers. Only two sets of descendants questioned the Rabun case, suggesting in letters to senior U.S. District Judge William C. O’Kelley that they intended to eventually mine the land. But by the time the case closed about a year later, neither of the two family descendants had appeared at the federal courthouse in Gainesville—both were from out of state—and the federal government had won its claim.

The United States had successfully acquired “all rights, titles, interests in the subsurface and mineral rights” of the Rabun land in question, Judge O’Kelley said in his court order of August 8, 2001. The Forest Service anticipates similar outcomes in the other cases. But Shaw, the forest activist, wants to stir the pot on this. “I definitely want to know more about this,” he concluded.

WHAT KIND OF MINING IS ALLOWED?

According to the Chattahoochee National Forest website, mining and mineral leasing laws govern commercial mining on public forestland. Exploration to determine a mineral’s presence in commercial quality and quantity “may be conducted with a Forest Service permit.”

No such permits are currently in force, whether for commercial mining, or commercial mining exploration, according to a Forest Service spokesman. Nor has anyone applied for such a permit as of the date of the interview, February 5, 2002. Recreational mining and “rock-hounding” are allowed, though. As follows:

• Recreational panning for gold in most streambeds is allowed, without need for special permit, permission or fees “as long as significant stream disturbance does not occur, and when only a shovel and a pan are used.”
• In-stream sluices and suction dredges are NOT allowed (emphasis in original).
• “Rock hounds” should check with the local district ranger office to make sure the location in question is on the National Forest, that rock hounding is permitted in the area, and that the mineral rights are not privately owned.
• “Special permission, permits or fees are not required to take a handful of rock, mineral or petrified wood specimens…as long as the specimens are for personal use, non-commercial gain and significant surface disturbance does not occur.”
• “In addition, no mechanical equipment may be used and any collection must not conflict with existing mineral permits, leases, claims or sales.”

Changes might be afoot in coming years, though. As part of the revision to the existing forest plan, Chattahoochee National Forest planners are entertaining proposals to allow “recreational suction dredging” of some streambeds, with the use of so-called “backpack dredges.”

NEW AMERICAN GOLD RUSH

The administration’s aggressive management plan is a severe blow to the environment. Among Bush’s proposed changes are plans to grant and expedite permits for hundreds of mining operations, including projects on sensitive federal lands. Bureau of Land Management (BLM) lands “were designated at their inception as multiple-use lands. We look at them as working landscapes,” said P. Lynn Scarlett, assistant secretary for policy, management, and budget. William J. Snape, Defenders of Wildlife head of litigation, said, “By the sheer volume of it, it’s going to be very difficult for people who care about the environment to fight this.”