Forest Service says 40-year resident of historic town trespassing
Worldnetdaily
By Sarah Foster
January 16, 2003
Source
It may be a close call, but help is on the way for a beleaguered, small-scale gold miner that the U.S. Forest Service wants to oust from an abandoned mining town that's been his home nearly 40 years.
Gerald "Jerry" Fennell, 61, is the last of the independent gold miners in the Jicarilla Mountains in south-central New Mexico, and one of the few remaining in the state.
Under orders sent last October by the Forest Service, Fennell had until yesterday to pack up and clear out or face trespassing charges. But with help from a local group and folks in the area who are rallying 'round, he's going to dig in his heels and fight.
"We'll be asking for an injunction to stop the eviction," says Jay Walley, communications director at the Paragon Foundation, a nonprofit public-policy organization in Alamogordo, N.M., that focuses on land rights and public access to federal lands. "From what we can tell, the Forest Service does not own those buildings where Jerry's living and has his mine – the question is, who does? In any case, there needs to be a closer look at this."
You won't find Jicarilla on a standard road map. It's "miles from nowhere," and to get there you must travel along a dirt forest road to the heart of the Lincoln National Forest. If you don't look sharp you just might miss it. Today it's a ghost town, but 75 years ago it was a small but thriving mining community. During the early 1930s, it had a population of some 300 people. There are only three buildings left – the church, the log schoolhouse and the former general store that Fennell moved into in 1997. The nearest town is Carrizozo, population 1060, located 30 miles to the southwest.
Sitting on a gold mine
Fennell owns several mining claims in the area, and what's left of the town sits on one of them. A 1988 article in the International California Mining Journal estimates there's a bonanza of $20 million in fine gold in the 1,920 acres that make up his mining claim, but he limits his operation to a swimming pool-size pit behind the store, which he works with a pickaxe and shovel, hauling the ore by wheelbarrow or with the help of a burro named "Dusty."
Last summer, Walley traveled to Jicarilla to meet the long-time resident gold miner and see his place first hand.
He keeps his efforts "small by design and philosophy," wrote Walley in an Aug. 18 report for newssite Sierra Times.
"I keep it that way because I don't want to disturb the land more than I have to; I just take enough gold to get by," Fennell told Walley. "I don't use any chemicals and darn little water."
As there is no natural supply of water at his home, what water he uses he draws from a well down the road, hauling it back in an aging pickup truck. A generator supplies electricity for lights and a computer. He has a few chickens running about that he keeps for eggs, and a goat for milk.
Fennell told Walley he had "recently" received a letter from the Lincoln National Forest office stating he'll be charged with trespassing unless he prepares various papers and forms, which he claims would likely put him out of business.
Specifically, the service is demanding that he file a "plan of operation" – a document describing the extent of his operation, the equipment to be used, restoration plans and other details. It's a standard request demanded of those wishing to mine or log or otherwise obtain resources from federal land. But applicants have found that when completed, further demands are made for ratcheting up requirements, thereby making it very difficult if not impossible for small-scale entrepreneurs like Fennell to operate.
"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," he explained. "I have watched them do it to my neighbors. They are all gone now. I am the last miner in the Jicarilla Mountains."
Although they insist Fennell should jump through a series of bureaucratic hoops, the Forest Service and its employees say they object only to his living arrangements, which they regard as squatting.
"Fennell has a legal right to his claim, but he is illegally occupying cabins that are on national forest land," Lincoln National Forest ranger Jerry Hawks told Walley.
But Fennell has a copy of a 1999 ruling by the Ninth Circuit Court of Appeals that says miners can live on their claims if they can produce possessory title and vested rights for structures and equipment.
And according to Walley, he does have tax records showing he has paid taxes on the structures and equipment for years.
Recently, Rene Romo of the Albuquerque Journal visited Fennell, and talked with Johnny Wilson, Forest Service's recreation and lands staff officer.
As far as Wilson and the Forest Service are concerned, Fennell doesn't run a true mining operation, Romo reported, despite his having a home "littered with various types of equipment used to sift through fine, dry dirt."
"He [Fennell] has done what is called prospecting – a pick and shovel operation," said Wilson.
"Well," Fennell retorts, "how have I made a living all these years?"
He wouldn't tell Romo how much money he has made over the years, but Fennell did say that selling gold, at the current rate of about $351 per ounce on the spot market, has sustained him "for decades."
In October, Fennell received notice from the Forest Service that he had 90 days to pack up and get out, "without further changing the historic structures." That period was up yesterday, Jan. 15. Wilson told Romo that if he had not left by the deadline, the agency would seek a court order for eviction. The next step would be for Fennell and the Forest Service to battle it out in court over whether the long-time resident has the right to live on his mining claim and who actually owns or has the right to control what remains of the town of Jicarilla. T
hat latter is a major bone of contention, since the Forest Service claims the buildings as its own. According to Fennell, the congregation of the Jicarilla Community Church used the old school house as a chapel until a few days before last Easter, when the Forest Service padlocked the door and posted a sign reading:
"PROPERTY of THE UNITED STATES" and warning "All Persons Are Prohibited Under Penalty of the Law from Committing Any Trespass."
At their meeting in August, Fennell showed Walley an envelope stuffed with "well-thumbed documents" he has collected over the last few years.
"Look at this," he exclaimed, selecting a record dealing with the schoolhouse. "This building has been used as a church since the '30s. How can the Forest Service just padlock and post it?"
And if he leaves, what will happen to the buildings? The Forest Service admits having no plans for restoration – it just doesn't want Fennell or anyone else living there.
"For years I have watched and cared for this building [the now-locked church] and the others," Fennell remarked. "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."
Fennell said he has asked the Forest Service to prove they even own the land on which his claim is located. Being in the middle of a forest is not automatic proof of federal ownership. There may be private, state and county holdings.
"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," said Fennell. "As best as I can determine through my research, this land may not even belong to the Forest Service."
Walley describes the title trail as "incredibly convoluted." Besides successive ownership by Spain, Mexico and the Republic of Texas, Jicarilla has been part of three New Mexico counties over the past hundred years, as boundaries were shifted. The Lincoln County tax assessor's office admitted, "There is really no way to know where all the records for Jicarilla are located."
Fennell is not saying he owns Jicarilla, but he is questioning the jurisdiction of the U.S. Forest Service. As he sees it, there are other more likely owners than the U.S. Forest Service.
"I've told them [the Forest Service], you show me proof of ownership, and it's over. I'm gone," Fennell explained to Romo. "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."
