The Sign On The Church House Door

PFNS, Alamogordo, NM ~ According to a recent assay report, twenty million dollars in fine gold lies beneath the ground on a few acres at Jicarilla, New Mexico. Miner Jerry Fennell owns the mining claims and for about thirty years he has made a living and raised a family by panning the dry gulch and working a swimming pool size pit behind his home with a pick and shovel. Fennell has no bulldozers or dump trucks. A wheelbarrow and a gentle burro appropriately named "Dusty" haul most of the ore.

Fennell sits glumly on the steps of the Jicarilla Mountain Community Church His operation is small by design and philosophy. "I keep it that way because I don't want to disturb the land more than I have too. I just take enough gold to get by. I don't use any chemicals and durn little water." There is no natural source of water so Fennell has to haul in all he uses with an aging pickup truck.

Those days of, "just getting by," will be over for Jerry if the U.S. Forest Service has its way. According to Fennell, he recently received a letter from the Lincoln National Forest office saying that he will be "charged with trespass" unless he files paperwork he says will put him out of business. "Once I file the paper (a plan of operation), the Forest Service will impose such a huge reclamation bond that I won't be able to afford it. I have watched them do it to my neighbors. They are all gone now. I am the last miner in the Jicarilla Mountains."

Jerry at the gate to his home, the old Jicarilla General Store Miners have worked the Jicarillas for centuries and governments pushing them from their lands are not new. Spanish records show that the Mescalero and Jicarilla Apaches dug turquoise in the remote mountains in 1598. The Spanish, and later the Mexicans, enslaved the Indians as labor to mine and separate the gold from the dirt in a wooden bowl called a "batea." After the Republic of Texas defeated Mexico, Texans dug for the precious metal from about 1820 to 1850. When the area became part of the Territory of New Mexico, the U.S. Army forcibly removed the Apache to reservations in 1864.

Prospecting for the lode deposits by American miners began in the 1880s. The town of Jicarilla grew up around the claims and had a schoolhouse, a general store, and a population of some three hundred during early 1930s. Jicarilla lasted until about 1942.

Today, buildings that were formerly the store, post office, schoolhouse, and church remain. Fennell's home is the old general store. According to Fennell, the congregation of the Jicarilla Mountain Community Church used the old school house as a chapel until the U.S. Forest Service padlocked it and posted a sign reading, "ALL PERSONS ARE PROHIBITED UNDER PENALTY OF THE LAW FROM COMMITTING ANY TRESPASS."

Fennell produces an envelope stuffed with well-thumbed documents he has gathered over the past few years. "Look at this," he says as he shows a record from the pile. "This building has been used as a church since the thirties. How can the Forest Service just padlock and post it?" He further said that he has repeatedly asked the Forest Service to prove that they even own the land on which his claim is located. "All they have provided is a copy of an Executive Order signed by President Woodrow Wilson that indicates certain lands must be taken to connect the Lincoln National Forest to another National Forest. As best as I can determine through my research, this land may not even belong to the Forest Service."

Indeed, the title trail is incredibly convoluted. In addition to ownership by Spain, Mexico, and the Republic of Texas, Jicarilla has been part of three New Mexico counties over the past hundred years as the political borders were shifted. The Lincoln County Tax Assessor's office stated: "There is really no way to know where all the records for Jicarilla are located."

Lincoln National Forest Supervisor Jose Martinez, speaking from his office in Alamogordo, New Mexico, said the Forest Service didn't know what to do about the Jicarilla Mountain Community Church situation. "We have the lawyers working on it!" he said. Asked if the Forest Service could be mistaken about its ownership of the tiny community, Martinez stated that they were sure of their title. He further said: ".Fennell could be charged if he did not file a plan of operation."

Lincoln National Forest Ranger Jerry Hawks stated in an interview that: "Fennell has a legal right to his claim, but is illegally occupying cabins that are on Nation Forest Lands." Fennell counters by producing 1999 documentation from the Ninth Circuit Court of Appeals that states miners can live on their claims if they can produce possessory title and vested rights for structures and equipment. Mr. Fennell does have tax records showing he has paid taxes on the structures and equipment for years.

Fennell's troubles have begun to attract public attention in Lincoln County, an area that has seen much of its history bulldozed by federal land agencies. Publisher Ruth Hammond and reporter Doris Cherry of The Lincoln County News believe that Jicarilla needs to be saved. "The Forest Service has destroyed too many of our historic buildings. Many of our residents have family who worked and are buried there. Our newspaper is going to work to save what is left of Jicarilla."

Fennell sits glumly on the steps of the Jicarilla Mountain Community Church and points to the U.S. Forest Service padlock and sign. "For years I have watched and cared for this building and the others. If the Forest Service pushes me out, in a couple of weeks what is left of this little village will be vandalized or bulldozed and burned by the feds." He pauses and looks sadly over what has been his home for decades, clears his throat and says quietly, "You know, it ain't the gold that has me reared up and fighting back. It is the saving of this place for our kids and grandkids. I'd hate to see it destroyed."

From this mornings Albquerque Journal:

Sunday, January 12, 2003

Gold Miner Fights Forest Service Order To Leave Land

By Rene Romo
Journal Southern Bureau
    JICARILLA — To hear Gerald "Jerry" Fennell tell the story, he is the little guy facing down overzealous federal bureaucrats intent on throwing him out of his longtime home in this abandoned mining community.
    Forest Service bureaucrats, Fennell argues, have no jurisdiction over the town, which is within the boundaries of Fennell's mining claim.
    The mining claim, however, is within the boundaries of the Lincoln National Forest. And to the Forest Service, Fennell is essentially a squatter on public lands.
    "He (Fennell) is really just trying to justify having a free place to live," said Johnny Wilson, the Forest Service's recreation and lands staff officer.
    The conflict, which has simmered between Fennell and the Forest Service for years, will soon heat up.
    The Forest Service has given Fennell, a wiry 61-year-old with a bristly white mustache, a Wednesday deadline to vacate the rickety three-room cabin — a converted general store — where he has lived since 1997.
    Fennell says that he has lived in different homes in Jicarilla since the early 1960s.
    It is a tiny mining town established in the 1850s after the Mexican-American War, when the area became part of the New Mexico territory, and was abandoned by most families in the 1970s.
    But don't expect a dramatic confrontation between Forest Service agents and Fennell come Wednesday, Wilson said.
    If Fennell does not leave by the Forest Service's deadline, the agency will seek a court order, Wilson said.
    Then the Forest Service and Fennell will wrangle in court over the issues of Fennell's right to live on his mining claim and over who controls the old ghost town in the belly of the Lincoln National Forest.
    "I've told them (the Forest Service), you show me proof of ownership, and it's over. I'm gone," Fennell said.
    He added: "The only thing I'm claiming here is the mining claim, my mine and the houses. The town, the history, the land belongs to the state of New Mexico, the county of Lincoln and the people. That's my firm position."

A simple way of life
    Fennell lives a simple life on his isolated mining claim, one of several he has owned since 1993. Chickens, kept for their eggs, roam freely about the property off of Forest Road 72, about 10 miles from Ancho, roughly 30 miles northeast of Carrizozo.
    Inside his cramped living room/bedroom, which is heated by a woodstove, a couple of car batteries are rigged to operate Fennell's phone. Out back, a generator is cranked up to power lights and Fennell's computer. A deer head and various antlers are mounted on the living room walls.
    Fennell must haul his water via truck from a well down the road. He keeps a goat for milk, and pigs for meat. A mule helps him haul the dirt from a nearby wash that Fennel sifts in search of gold dust.
    Fennell will not say how much he makes from his low-tech operation, which uses virtually no water and no earthmovers. But Fennell notes that selling gold, at the current rate of about $351 per ounce on the spot market, has sustained him for decades.
    A 1988 article in the International California Mining Journal estimated there was $20 million in the three sections, totalling 1,920 acres, that comprise his mining claim. Fennell said that a couple, who made an extended stop in Jicarilla during their honeymoon a few years back, left with $18,000 in gold dust after panning for two weeks.
    While Fennell's home is littered with various types of equipment used to sift through fine, dry dirt to cull gold grains, Wilson maintains that Fennell does not conduct a mining operation.
    "He (Fennell) has done what is called prospecting — a pick and shovel operation," Wilson said.
    "Well," Fennell counters, "how have I made a living all these years?"
    The Forest Service does not dispute Fennell's right to work his mining claim, Wilson said. But, the Forest Service maintains that miners are generally not allowed to live full-time in a national forest. Miners are expected to live outside of the forest and commute to their claims.
    Even so, it's possible Fennell could gain Forest Service authorization to live in Jicarilla if he jumped through a bureaucratic hoop first.
    Were Fennell to submit a formal "plan of operation" outlining the scope of his mining activities, the equipment used, and restoration plans, the Forest Service could determine whether the mining operations warranted allowing Fennell to live on-site, Wilson said.
    But Fennell has refused to submit a plan of operation. For one thing, Fennell believes that if he agrees to subject himself to the Forest Service's oversight, the agency will gradually impose higher and higher reclamation bonds, eventually regulating him out of business.
    More basic than that, Fennell says the Forest Service has no say over his mining claim.
    The main point of contention is a 1907 law signed by President Theodore Roosevelt that expanded the boundaries of the Lincoln National Forest to include the Jicarilla Mountains.
    Wilson said the Forest Service's jurisdiction was enhanced by a 1955 act of Congress that said mining claims only provide miners mineral rights, not surface rights that could include trees, grazing areas or residences.
    But Fennell says the 1907 act specifically exempted areas such as the Jicarilla township from the Lincoln National Forest. Thus, Fennel argues, the Forest Service does not have jurisdiction over the Jicarilla area.
    "Since he refuses to comply and submit (a plan of operation), we have no other alternative," Wilson said, but to seek Fennell's departure.

Arguing over history
    In October, then-Smokey Bear District Ranger Gerald Hawkes sent Fennell a notice giving him 90 days to remove his personal property from the mining claim and "without further changing the historic structures."
    Still standing in Jicarilla is the former general store, where Fennell lives, a former post office, and the old schoolhouse, also used as a church.
    The tussle between the stubborn miner and the Forest Service has grown more intense in the past two years.
    In May 2001, Fennell and several others who have mining claims in the area established the Jicarilla Mining District Commission to govern their claims.
    In March 2002, a few days before Easter, Forest Service officials slapped a padlock on the old schoolhouse, which Fennell and others had used as the Jicarilla Mountain Community Church. The Forest Service also attached a yellow sign stating that the church is property of the United States, warned against trespass and threatened anyone who damaged the building with a $500 fine.
    In August 2002, the Jicarilla Mining District Commission passed a resolution: "No laws may be made or enforced that would devaluate its history or historic tradition."
    In other words, Fennell said, the Forest Service may never tear down any Jicarilla buildings.
    Both Fennell and the Forest Service profess their desire to preserve the aging structures, but each side questions the other's sincerity.
    "I'm fighting for the town," Fennell says. "Preserving it is living in it, occupying it, painting it."
    Fennell said that Forest Service officials once arrived at Jicarilla with two firetrucks in tow, announcing their plans to burn down the old schoolhouse and general store, where Fennell lives. Fennell also says the Forest Service has in the past burned or demolished more than a dozen homes vacated by former miners.
    Wilson, however, argues that Fennell is the one "really kind of destroying" the historic building by living in it.
    Wilson said the Forest Service does not have plans to restore Jicarilla's remaining buildings, if they are vacated.
    "We don't know what is appropriate to do," Wilson said. "We might just try to protect it and put up signs telling what was there."

Copyright 2003 Albuquerque Journal

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