United States v. Kahre et al

Filing 45

ORDER Granting 37 Motion for Summary Judgment. FURTHER ORDERED that Plaintiff submit a proposed injunction and judgment for the court's signature within 14 days of entry of this Order. Signed by Judge Kent J. Dawson on 7/5/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,
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Plaintiff,

Case No. 2:10-CV-1198-KJD-LRL

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v.

ORDER

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RICHARD KAHRE, et al.,
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Defendants.
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Presently before the Court is Plaintiff’s Motion for Summary Judgment (#37). Defendant

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John Nelson filed a response in opposition (#41) to which Plaintiff replied (#42). Defendant Richard

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Wellman has failed to file a response in opposition.1

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I. Facts

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Plaintiff, United States of America (the “Government”) possesses land within the State of

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Nevada. The Bureau of Land Management (the “BLM”) is an agency of the Department of the

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Interior and is authorized to administer the land which is the focus of the allegations in this action.

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In accordance with LR 7-2(d), and good cause being found, the Court grants the Motion for Summary
Judgment as to Richard W ellman.

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The Government filed a Complaint against Defendants Robert Kahre (“Kahre”), John Nelson

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(“Nelson”), and Richard Wellman (“Wellman”)(collectively “Defendants”). The Complaint asserts a

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claim for trespass because Defendants have failed to obey a Notice of Noncompliance order and the

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Notice of Operations has expired. Wellman has failed to file a response in opposition to the Motion

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for Summary Judgment. The Court granted a Motion for Default Judgment against Kahre as to

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liability only. Nelson filed the only response in opposition to the Motion for Summary Judgment.

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Defendants acquired ownership interest in the White Park Mill Site (the “Mill Site”) on or

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about June 17, 1997 from White Park R&D, Inc. through quitclaim deeds. See Plaintiff’s Motion for

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Summary Judgment (#37), Exhibit 1 and 2. Defendants operated the Mill Site under a notice-level

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operation, which requires operators to submit a Notice of Operations to the BLM. 43 C.F.R.

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§3809.300. On April 20, 2000, a field examination was conducted and it was determined that

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occupancy of the Mill Site consisted of a locked gate, a partial fence, and two buildings. On June 4,

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2001, a Surface Use Determination report determined that the level of occupancy that Defendants

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possessed was not necessary because neither milling nor mining was taking place. The Notice of

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Noncompliance of June 6, 2001 notified Defendants of these results and ordered Defendants to

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remove the locked gate, fence, equipment, and buildings from the Mill Site. Defendants appealed the

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decision of June 6, 2001 to the Interior Board of Land Appeals (“IBLA”). IBLA affirmed the results

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of the Notice of Noncompliance on April 15, 2003. An order of June 3, 2003 granted Defendants an

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additional 90 days to comply with the Notice of Noncompliance. Defendants have not complied with

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this order. On September 3, 2004, the BLM notified Defendants that their current Notice of

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Operations for the Mill Site would be extended only if the Defendants provided a reclamation bond

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for the site. Defendants failed to provide this bond resulting in the BLM notifying Defendants that

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their Notice of Operations expired on November 8, 2004, and that reclamation must begin

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immediately.

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Nelson seems to allege that the BLM is not the true owner of the property and therefore

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cannot pursue a common law trespass action. Nelson also alleges that Defendants are not responsible
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for any damage to the Mill Site prior to their ownership interest because they did not assume the risk

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and cost of reclamation from the prior owner.

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The Government alleges that Defendants are in trespass on the Mill Site because they are in

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violation of the Notice of Noncompliance and the Notice of Operations is expired. The Government

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contends that the Notice of Noncompliance and the expired Notice of Operations requires

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Defendants to remove all possessions from the Mill Site and failure to remove possessions renders

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Defendants in trespass. Defendants have failed to oppose the Government’s statement of the facts or

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any exhibits provided with the Motion for Summary Judgment.

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II. Discussion

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A. Standard for Summary Judgment

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“The court shall grant summary judgment if the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law” Fed. R. Civ.

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P. 56(a); see Sierra Club v. Bosworth, 510 F.3d 1016, 1022 (9th Cir.2007). Summary judgment is

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proper only when the pleadings, depositions, affidavits, and other permitted material demonstrate

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that there is not an issue of material fact. Fed.R.Civ.P. 56(c); S. E. C. v. Seaboard Corp., 677 F.2d

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1301, 1305-06 (9th Cir. 1982); Pegasus Fund, Inc. v. Laraneta, 617 F.2d 1335, 1339 (9th Cir. 1980).

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The moving party bears the initial burden of showing the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A material issue of fact is one that affects the

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outcome of the litigation and requires a trial to resolve the parties’ differing versions of the truth.”

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Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986); Admiralty Fund v.

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Hugh Johnson & Co., 677 F.2d 1301, 1306 (9th Cir.1982). Motions for summary judgment and

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responses must include a concise statement setting forth each material fact which the party claims is

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or is not genuinely an issue by citing the record or other evidence upon which the party relies. LR 56-

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1.

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Plaintiffs are representing themselves pro se. Courts must liberally construe the pleadings of

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pro se parties. See United States v. Eatinger, 902 F.2d 1383, 1385 (9th Cir. 1990). However, “pro se
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litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of

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record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).

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B. Trespass on Public Lands

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The use of public lands in a manner contrary to the regulations of the responsible authority is

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prohibited under the Federal Land Policy and Management Act. 43 U.S.C. §1701. To establish

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trespass, the BLM must demonstrate that a defendant, “is using, occupying, or developing the public

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lands or their resources without [the] required authorization or in a way that is beyond the scope and

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terms and conditions of [the] authorization” 43 C.F.R §2808.10. “Trespass includes acts or

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omissions causing unnecessary or undue degradation to the public lands or their resources.” 43

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C.F.R. §2808.10(b). A mill site claimant's failure to comply with the applicable regulations

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invalidates the claimant's possessory rights in a mill site. United States v. Bollinger, 118 F. App’x

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147, 149 (9th Cir. 2004); see United States v. Shumway, 199 F.3d 1093, 1103 (9th Cir.1999); United

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States v. Brunskill, 792 F.2d 938, 941 (9th Cir.1986).

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The BLM is authorized to issue a Notice of Noncompliance to a claimholder who has

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violated a requirement. 43 C.F.R. §3715.7-1(c). A Notice of Noncompliance must, inter alia, advise

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the claimholder how they are failing to comply with the requirements, the actions that should be

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taken to comply with those requirements, and the length of time allowed to correct the violation. 43

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U.S.C. §3715.7-1(c). Failure to comply with §3715.7-1 may result in the Department of the Interior

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requesting the United States Attorney to institute a civil action in United States District Court for an

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injunction or order to prevent an individual from occupying the land. 43 C.F.R. §3715.7-2.

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To operate a notice-level mill site an operator must submit a Notice of Operations. 43 C.F.R.

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§3809.301. A Notice of Operations requires, inter alia, that an operator submit contact information,

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map and description of the area, schedule of activities, reclamation plan, and a reclamation cost

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estimate every two years to the BLM. 43 C.F.R. 3809.332. An operator is required to provide a

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reclamation bond to renew a Notice of Operations after 2001.

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Here, Defendants have failed to demonstrate that an issue of material fact exists and have

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failed to show that the materials cited do not establish the absence of a genuine dispute. The Notice

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of Noncompliance ordered the removal of Defendants’ possessions and any other unnatural debris

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from the Mill Site within 30 days. Defendants filed an appeal staying the Notice of Noncompliance

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until the IBLA ruled. On December 2, 2004, IBLA upheld, in toto, the BLM’s Notice of

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Noncompliance. This Decision also determined that although Defendants did provide a notification

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to extend the Notice of Operations for the Mill Site, they failed to provide a reclamation bond in

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accordance with 43 C.F.R. 3809. Failure to provide the bond by the deadline required the expiration

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of the Notice of Operations as of November 8, 2004. Currently, Defendants continue to use or

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occupy the Mill Site without authorization by failing to remove their possessions. The Court finds

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that Nelson’s response in opposition to the Motion to Dismiss fails to contravene any exhibits of

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record or provide other materials demonstrating that an issue of material fact exists. Therefore, the

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BLM acted within their purview according to 43 C.F.R. §§3809.335 and 3715.7-1(c) to order

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Defendants to cease operations, except reclamation. Accordingly, the Court grants the Government’s

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Motion for Summary Judgment.

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The BLM operates under administrative law in bringing actions for trespass. 43 U.S.C.

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§1701, 43 C.F.R. §2808.10. The transfer of a mining claim does not relieve a former mining

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operator's responsibility that accrued while the former mining operator was responsible for

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operations conducted on that mining claim until the BLM receives documentation that a transferee

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accepts responsibility for the transferor's previously accrued obligations. 43 C.F.R. §3809.116. Here,

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the BLM received adequate documentation in the Notice of Change of Ownership (See Plaintiff’s

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Motion for Summary Judgment, Exhibit 1) and the seven quitclaim deeds (See Plaintiff’s Motion for

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Summary Judgment, Exhibit 2) that granted all improvements, appurtenances, easements, and rights

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that White Park R&D, Inc. possessed to the Defendants. These are sufficient to allocate the risk and

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cost of reclamation to Defendants. Furthermore, 43 C.F.R. §3809.116 does not relieve the present

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operator from liability for obligations or conditions that accrued before the present operator gained

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its interest.

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C. Relief

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The Government asserts that it is entitled to relief for trespass in the following forms: 1)

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injunction, 2) ejectment, 3) declaratory judgment, 4) restoration, and 5) conditional damages. A

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violation of 43 C.F.R. §3715.7-1(c) may result in an injunction preventing occupants from occupying

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the public lands. 43 C.F.R. §3715.7-2. Routinely courts order trespassers to remove from the public

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lands all unauthorized personal property, equipment, or buildings within 90 days. See United States

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v. McClure, 2006 WL 2818354 *5 (E.D. Wash. 2006). Courts often impose declaratory judgment in

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trespass cases. Typically, declaratory judgments permit the Government to take legal possession of

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all personal property, including but not limited to motor vehicles, structures, equipment and dispose

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of such property without further motions. McClure, 2006 WL 2818354 at *5. If a party is determined

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to be in trespass, the BLM may conclude that the offender must reclaim or restore the damaged land.

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43 C.F.R. §2808.11. If the party fails to restore the land within the time set by the BLM, the party

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will be liable for any costs the United States incurs for rehabilitating and restoring the lands. 43

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C.F.R. 2808.11; McClure, 2006 WL 2818354 at *5.

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Here, Defendants have failed to comply with the order of Noncompliance, and the Court is

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required to impose all remedies that are consistent with this violation. Also, Defendants’ Notice of

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Operations expired as of November 8, 2004, and the Court is required to impose all remedies that are

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consistent with 43 C.F.R. §§3809.335 and 2808.11. Accordingly, the Court grants Plaintiff all the

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forms of relief sought.

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III. Conclusion
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment
(#37) is GRANTED;
IT IS FURTHER ORDERED that Plaintiff submit a proposed injunction and judgment for
the Court’s signature within fourteen (14) days of entry of this Order by the Court.
DATED this 5th day of July 2012.

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_____________________________
Kent J. Dawson
United States District Judge

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