United States of America v. Tracy

Filing 41

ORDER: Denying Motion to Dismiss 33 ; Denying Motion for Summary Judgment 35 ; Granting Motion for Summary Judgment 28 . The amended preliminary injunction 19 remains in effect pending entry of final judgment. Signed on 11/10/2009 by Judge Owen M. Panner. (dkj)

FILED'09 ~·lOV

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I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON UNITED STATES OF AMERICA, Plaintiff,

c v N o . 0 9 -2 0 7 8 - P A j(

v.
CLIFFORD R . TRACY, Defendant.
ORDER

PANNER, D i s t r i c t J u d g e :

The United S t a t e s brings claims for t r e s p a s s and ejectment a g a i n s t C l i f f o r d R. Tracy, who owns an u n p a t e n t e d p l a c e r mining claim in the Rogue River-Siskiyou National Forest. Without Forest

Service permission, Tracy felled timber, diverted a stream, and excavated rock and soil on his mining claim. I grant the government's motion for summary judgment as to l i a b i l i t y and deny Tracy's motions to dismiss and for summary judgment. I will set a briefing schedule and hearing on remedies,

including damages and injunctive r e l i e f .
BACKGROUND

Forest Service regulations required that Tracy submit a plan of mining operations to the District Ranger "if the proposed

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operations w i l l l i k e l y c a u s e a s i g n i f i c a n t d i s t u r b a n c e o f s u r f a c e resources." 36 C.F.R.
§

228.4 (a) (3).

Tracy submitted a plan of The D i s t r i c t

operations to the Forest Service in January 2005.

Ranger concluded Tracy's planned mining operations would likely cause significant disturbance of surface resources. While i t

evaluated Tracy's plan, the Forest Service consulted with other federal and state agencies. In February 2009, the Forest Service The Draft EIS

issued a Draft Environmental Impact Statement. proposed an alternative plan of operations.

In July 2009, Tracy n o t i f i e d the Forest Service t h a t he was rescinding his signature on his applications, effectively withdrawing from the agency process. The Forest Service then

warned Tracy that i f he felled trees or mined without an approved operating plan, he would be subject to c i v i l and criminal penalties. Tracy moved excavating machinery and mining equipment onto his claim without Forest Service knowledge or permission. By

September 2009, Tracy had felled about twenty mature trees, built a road, diverted a creek, and created two ponds. His operations

discharged d i r t and gravel into Sucker Creek, which is habitat for coho salmon, a threatened species. I granted the government's motion for a preliminary injunction and ordered Tracy to stop his mining operations pending a final judgment. Tracy complied with the order and moved h i s T h e F o r e s t S e r v i c e h a s now

equipment off national forest land. rehabilitated the site.

A f t e r a c r i m i n a l t r i a l t o t h e c o u r t , CR N o . 0 9 - 3 0 0 4 l - P A , I found Tracy guilty of mining without an approved plan, a misdemeanor. See 36 C.F.R.
§§

228.4 & 261.10(p).

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ORDER

STANDARDS

The court must grant summary judgment i f there are no genuine issues of material fact and the moving party i s e n t i t l e d to judgment as a matter of law. Fed. R. Ci v . P. 56 (c) . If the

moving party shows that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and Celotex Corp. v.

designate facts showing an issue for t r i a l . C a t r e t t , 477 U.S. 317, 322-23 (1986).
DISCUSSION

Tracy contends that he cannot be liable for trespass on his own mining claim. As the owner of an unpatented mining claim i n a

national forest, Tracy does have a property right in the claim, although the United States retains t i t l e to the land. See United

S t a t e s v. Shumway, 199 F.3d 1093, 1103 (9th C i r . 1999); United S t a t e s v . R u s s e l l , 2 0 0 9 WL 3 3 3 2 5 , a t * 1 n . 1 ( N . D . C a l . J a n . 6 , 2009) ("An unpatented mining claim i s one t o which the United There i s no doubt that

States government retains t i t l e . " ) .

Congress intended to promote mining on public lands, but not at the expense of protecting national forests. explained: The Secretary of Agriculture has been given the responsibility and the power to maintain and protect our national forests and the lands therein. While prospecting, locating, and developing of mineral resources i n the n a t i o n a l f o r e s t s may not be p r o h i b i t e d nor so unreasonably circumscribed as to amount to a p r o h i b i t i o n , t h e S e c r e t a r y may adopt reasonable r u l e s and regulations which do not impermissibly encroach upon the right to the use and enjoyment of placer claims for mining purposes. United S t a t e s v. Weiss, 642 F.2d 296, 299 (9th Cir. 1981) (footnote omitted). Under the current statutory regime, "persons As the Ninth C i r c u i t

entering the national forests to prospect, locate, and develop mineral resources therein are subject to and must comply with the
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rules a n d r e g u l a t i o n s c o v e r i n g t h e n a t i o n a l f o r e s t s .

II

Id. at 298.

"While the regulation of mining per se i s not within Forest Service jurisdiction, where mining activity disturbs national forest lands, Forest Service regulation is proper.
II

United States

v. Goldfield Deep Mines Co., 644 F.2d 1307, 1309 (9th Cir. 1981). Because Tracyls planned mining operations were likely to disturb surface resources, the Forest Service had the authority to require that Tracy submit a proposed plan of operations before mining. See Clouser v. Espy, 42 F.3d 1522, 1530 (9th Cir. 1994). Tracy contends that the Forest Service exceeded i t s authority by unreasonably delaying approval of his proposed operating plan. Even i f the Forest Service's treatment of Tracy's proposed plan was unreasonable (which i s not a t issue here), Tracy has no r i g h t to mine without an approved plan of operations. While Tracy's

frustration with the administrative process is understandable, i t cannot j u s t i f y h i s d e c i s i o n t o take the law i n t o h i s own hands. Tracy had legitimate alternatives to self-help: he could have

continued with the agency process, or brought an action for judicial review to compel the Forest Service to act. See Clouser,

42 F.3d a t 1531-32 (mining operators must exhaust administrative remedies); Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (liThe [Administrative Procedures Act] provides

t h a t a court may compel 'agency a c t i o n unlawfully withheld o r unreasonably delayed.
III)

(citing 5 U.S.C. § 706(1)).

After

abandoning t h e agency p r o c e s s , Tracy cannot now complain t h a t the Forest Service acted unreasonably. 888 F.2d 630, 633 (9th Cir. 1989). See united States v. Doremus, Shumway, c i t e d by Tracy, i s

not on point because the claimants there did not act without
authorization. See Shumway,
"S0

199 F.3d a t 1103

{Shumways r e t a i n e d

mining rights
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long as the Shumways complied with mining law

and f o r e s t s e r v i c e r e g u l a t i o n s " ) . Tracy has not cited, and I have not found, any authority that would allow a miner to significantly disturb national forest land without an approved plan of operations. In Doremus, the defendant

miners were convicted of violating Forest Service regulations because they did not comply with an approved plan of operation. The Ninth Circuit s t a t e d t h a t i f the miners "believed t h a t t h e i r operation required the removal of trees and that the plan failed to accommodate t h a t need, t h e i r remedy was to appeal the plan p r i o r to commencing operations. Appellants may not b l i t h e l y

ignore Forest Service regulations and argue afterward that their conduct was
I

reasonable. '"

Id. at 633.

The court explained,

"The

purpose of requiring prior approval is to resolve disputes concerning the statutory balance [between allowing mining and protecting national forests] before operations are begun, not after." Id. a t 632 (original emphasis).

The government i s e n t i t l e d to summary judgment on i t s trespass claim. A person i s liable for trespass " i f he

intentionally (a) enters land in the possession of the other, or causes a thing o r a t h i r d person t o do so, o r (b) remains on the land, or (c) f a i l s to remove from the land a thing which he i s under a duty to remove." (2009).1 Restatement (Second) of Torts
§

158

Here, Tracy moved heavy machinery onto the claim without

Forest Service permission or knowledge; excavated and cleared the s i t e without permission; and kept machinery on the s i t e after the Forest Service asked him to remove i t . By c h o o s i n g t o m i n e

2. C o u r t s a p p l y i n g f e d e r a l common l a w a n d O r e g o n l a w r e f e r t o the Restatement of Torts on trespass. See United States v. M i l n e r , 2 0 0 9 WL 3 2 6 0 5 2 8 , a t * 3 ( 9 t h C i r . O c t . 9 , 2 0 0 9 ) ; M a r t i n v . Reynolds Metals Co., 221 Or. 86, 101, 342 P.2d 790, 797 (1959).
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ORDER

without a n a p p r o v e d p l a n o f o p e r a t i o n s , T r a c y b e c a m e a t r e s p a s s e r on the national forest. 938, 941 (9th Cir. 1986) See United S t a t e s v. Brunskill, 792 F.2d ( d i s t r i c t c o u r t may o r d e r miner working

without plan of operation to remove unauthorized structures) ; United States v. Burnett, 750 F. Supp. 1029, 1033 (D. I d a h o 1 9 9 0 )

The government seeks damages based on the expenses incurred investigating Tracy's operation and rehabilitating the claim site. IIA t r e s p a s s , o n c e e s t a b l i s h e d , c a r r i e s w i t h i t l i a b i l i t y f o r r e s u l t i n g h a r m . II 315 (1961) Loe v. Lenhardt, 227 Or. 242, 248, 362 P.2d 312,

( c i t i n g Martin v. Reynolds Metals Co., 221 Or. 86, 342 The government i s e n t i t l e d to damages for I reserve ruling on the amount of damages and

P.2d 790 (1959)). Tracy's trespass.

appropriate injunctive relief.
CONCLUSION

P l a i n t i f f ' s motion for summary judgment (#28)

is granted as

to l i a b i l i t y , with damages and injunctive r e l i e f to be determined. Defendant's motions to dismiss (#33) and for summary judgment (#35) are denied. The amended preliminary injunction (#19)

remains in effect pending entry of final judgment. I T I S SO ORDERED. DATED t h i s

---J!l- day

of November, 2009.

OWEN M. PANNER U . S . D I S T R I C T JUDGE

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ORDER