Petition — Walker v. Hoffman

re >

Supreme Court, U, §,

| FILED

NOV 1 1978

LMIOHAEL ReDaK JR., CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term 1978

No. 78 -724

WILLARD S. WALKER,

> Petitioner,

V o

JOHN O. HOFFMAN, RUSSELL B.

HALLIDAY, DALE L. FARLEY, MERLE

HOFFERBER, W. P. RONAYNE, EDWARD

LEWIS, JR., and DOES I through xX,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

William Braly Murray

Attorney for Petitioner

1610 Standard Plaza

Portland, Oregon 97204

Telephone: (503) 226-3819

i

TABLE OF CONTENTS

Petition for Writ of Certiorari

Opinions Below

Jurisdiction

Question Presented

Constitutional provision, Statutes,

and Regulations in pertinent part

Statement of the Case

Reasons for Allowing the Writ

Conclusion

APPENDIX

Memorandum Opinion of the United

States Court of Appeals for the

Ninth Circuit

Order Denying Petition for

Rehearing

Magistrate's Findings and Recom-

mendation

Order of District Court

AUTHORITIES CITED

CASES

American School of Magnetic Healing

v. McAnnulty, 197 U.S. 94, 108, 110

Barr v. Matteo, 360 U.S. 564 (1959)

Bates v. Clark, 95 U.S. 204 (1877)

Page

ll

17

A-12

13

13

12

ii iii

Table of Authorities Cited (continued) Table of Authorities Cited (continued)

Page Page

Butz v. Economu, U.S. » as 8s. 28 uSC §1254(1) 3

2984 (June 29, 1978) _ 12, 33;

L3e 20, 27 28 USC §1331 8

Little v. Barreme, 2 Cranch (6 U.S.) 28 USC §1343 8

1970, (1804)) 12 .

30 USC §22 4, 6

Nesmith v. Alford, 318 F2d 110 (1963)

(9th Cir.) 13 30 usc §35 4

Noble v. Union River Logging R. Co., 30 USC §612 4,5,6, 12, 15

147 U.S. 165, 171, 182 13

42 USC §1985(3) 8, 9

Philadelphia Company v. Stimson,

223 U.S. 605, 619 13 Rule 15, Federal Rules of Civil

Procedure 10

Scheuer v. Rhodes, 416 U.S. 232 (1974) 15

36 CFR §252.1 5

Scranton v. Wheeler, 179 U.S. 141, 152 13

43 CFR §4.451l-1 5

Spalding v. Vilas, 161 U.S. 483 (1896) 13

TREATISE

Subin v. Goldsmith, 224 F2d 753

(CA 2 1955) 17 Wright, Law of Federal Courts 493

(1976) 16

Tindal v. Wesley, 167 U.S. 204, 222 13

United States v. Lee, 106 U.S. 196, 220 13

Wood v. Strickland, 420 U.S. 308

(1975) 14

CONSTITUTION, STATUTES, REGULATIONS

Fifth Amendment to the Constitution

of the United States 3, ll

5 USC §558(b) 5

16 USC §482 3, 4

In The

SUPREME COURT OF THE UNITED STATES

October Term 1978

No.

WILLARD S. WALKER,

Petitioner,

Vv.

JOHN O. HOFFMAN, RUSSELL B.

HALLIDAY, DALE L. FARLEY, MERLE

HOFFERBER, W. P. RONAYNE, EDWARD

LEWIS, JR., and DOES I through xX,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

In this case of denial of civil

rights, and Fifth Amendment rights of

"Due Process", your petitioner prays

that a Writ of Certiorari issue to

review the opinion affirming summary

judgment which granted immunity to

employees of the United States Forest

Service, Department of Agriculture,

from plaintiff's suit for damages.

OPINIONS BELOW

The opinions below have not been

reported. The Memorandum Opinion of

the United States Court of Appeals for

the Ninth Circuit, affirming the District

Court's grant of summary judgment for the

respopdents, is set out in the appendix

A-l1.— The opinions of the Magistrate

and of the District Court for the District

of Oregon are set out at A-7 and A-12.

1/ Respondents have presented to

the Court of Appeals an emergency motion

requesting publication of the Court of

Appeals decision. They urge that it sets

an important precedent defining "the

application of the qualified immunity

principle to official actions taken in

the administration of the public lands

and with regard to trespassing individ-

uals and structures placed on the public

lands by them." The respondents wish to

assert this decision as a precedent in

other pending litigation concerning

unauthorized, arbitrary action by Forest

Service personnel.

This is the first decision in

the Ninth Circuit (or any other circuit)

which would permit employees of the

Department of Agiiculture to enlarge the

scope of their official conduct beyond

any statutory authority ever granted to

them by Congress and would endorse

seizure by such officials of power to dis-

pense with any adjudicatory proceeding

and to decide for themselves the extent

and the validity of a citizen's unpatented

mining claim located on public lands of

the United States open to mineral entry,

in disregard of Constitutional guarantees

of a citizens' property and riaht to

"Due Process".

JURISDICTION

The judgment of the Court of Appeals

was made and entered June 23, 1978, and

the order denying appellant's Petition

for Rehearing was entered September 14,

1978. This petition for writ of certior-

ari is timely filed.

Jurisdiction to review by writ of

certiorati is conferred on this Court

by 28 USC §1254(1).

QUESTION PRESENTED

The question presented for review

is whether it was erroneous to grant im-

munity in an action based on denial of

civil rights and denial of "Due Process"

brought against Forest Service personnel

by a citizen on whose uncontested peacer

mining claim they have burned buildings

and confiscated and sold personal proper-

ty, when so doing was outside the scope

of any statutory authority conferred

upon Forest Service personnel.

CONSTITUTIONAL PROVISION, STATUTES

AND REGULATIONS IN PERTINTENT PART

U.S. Constitution: "Due Process"

and protection of property rights under

the Fifth Amendment are so well known

to the Court that the amendment need

not be set forth.

Statutes: 16 USC §482 (codified

1970), known as the Organic Administra-~

tion Act of 1897, creating the national

forest system, provides that nothing

therein shall interfere with the opera-

tion of the mining law.

"Any mineral lands in any national

forest...subject to entry under the

existing mining laws of the United

States and the rules and regulations

applying thereto, shall continue to

be subject to such location and entry,

notwithstanding any provisions con-

tained in Sections 473-482 and 551 of

this Act." 16 USC §482.

The mining law provides:

30 USC §22 "...all valuable mineral

deposits in lands belonging to the

United States...shall be free and open

to exploration and purchase, and the

lands in which they are found to occu-

pation and purchase by citizens of the

United States...."

30 USC §35 "Claims usually called

'placers', including all forms of

deposit, excepting veins of quartz, or

other rock in place, shall be subject

to entry and patent, under like cir-

cumstances and conditions, and upon

similar proceedings, as are provided

for vein or lode claims...."

30 USC §612 “Unpatented mining claims -

Prospecting, mining or processing opera-

tions...Reservations in the United States

to use of the surface and surface resour-

ces.

(b)...any use of the surface of any

such claim by the United States...shall

be such as not to endanger or materially

interfere with prospecting, mining or

processing operations or uses reasonably

incident thereto....

(c) Except to the extent required

for the mining claimant's prospecting,

mining or processing operations and

uses reasonably incident thereto, or

for the construction of buildings or

structures in connection therewit.....

no claimant of any mining claim...

shall, prior to issuance of patent

therefor, sever,remove, or use any

vegetative or other surface resources

thereof which are subject to management

or disposition by the United States..."

The Administrative Procedure Act

provides in 5 USC §558(b): "A sanc-

tion may not be imposed or a substan-

tive rule or order issued except within

jurisdiction delegated to the agency

and as authorized by law."

REGULATIONS

The Forest Service regulations

disclaim any intention to interfere with

use of the surface of National Forest

System lands in connection with operations

authorized by the United States mining

laws. "It is not the purpose of these

regulations to provide for the management

of mineral resources; the responsibility

for managing such resources is in the

Secretary of the Interior." 36 CFR §252.1.

The Regulations of the Department of

the Interior provide:

"The Government may initiate, con-

tests for any cause affecting the legality

or validity of any entry or settlement or

mining claim." 43 C.F.R. §4.451-1.

STATEMENT OF THE CASE

In 1971, Willard Walker located a

placer mining claim based on discovery

of placer gold. The land was open to

mineral entry, available to be located

by any citizen under the mining law. 30

USC §22 et seq. The mining law author-

izes plaintiff to maintain structures

and equipment and personal property on

a currently existing mining claim. 30

USC §612.

No contest was ever filed to chal-

lenge the legality or the validity of

Walker's Mamie Placer Claim. Nor was

any action instituted in any court to

dispute Walker's right to occupy the

placer claim. In the absence of such

adjudicatory procedure, no employee of

the Department of Agriculture has any

legally delegated authority to determine

the extent or the legality or the valid-

ity of an unpatented mining claim lo-

cated on federal public lands open to

mineral entry, nor to treat structures

or personal property maintained on a

mining claim as being in trespass.

Intra-agency correspondence in the

administrative file shows that the

defendants were aware that the contest

which had invalidated the old mineral

entry of R. H. Barney on the Mamie

lode claim located September 1, 1958,

would not affect Waiker's right to

maintain structures on his placer

mining claim entry made in July 1971.

Thomas E. Atwood, Resource Assistant

for Forestry, wrote on November 12,

1973 to W. P. Ronayne, ¥Yorest Super~

visor:

"It has come to our attention that

the above named individual [Willard

Walker] has filed a placer claim

over the area of the Mamie lode

claim. This being the case, it

would appear that we have been

frustrated in our present attempts

to resolve this occupancy trespass.

In light of this development we

have not proceeded with the im-

poundment of personal property.

"We would like to recommend pro-

ceeding as a validity contest..."

R 100.

Dale L. Farley, Lands & Recreation

Staff, forwarded Atwood's letter to the

Regional Forest R-6, with a request for

mineral examination, and wrote:

"If the new examination and report

supports an additional complaint,

this we so recommend."

He observed that there was no basis for

withdrawal of the land. R 101.

Colver Anderson, mining engineer,

recommended a validity hearing. He

observed: "In that event, Mr. Walker

will offered a chance tc show his dis-

covery before we take other action."

R 103. Anderson's report shows the

structures covered by the July 1971

location of the Mamie placer claim.

R 104.

Arno Riefenburg, Regional Attorney,

wrote to Milvoy Suchy, Branch Chief,

Minerals and Geology, that he questioned

the effectiveness of the placer location

notice 7. But Mr. Riefenburg did not

assume to invalidate the placer claim,

and his letter did not authorize the

impoundment and destruction of Mr.

Walker's buildings without an adjudi-

catory proceeding being had.

Defendants violated Walker's

constitutional and statutory rights when,

in 1974 and 1975, they destroyed his

cabin, power house and tool shed and

confiscated and sold his mining equip-

ment and personal property on his placer

claim.

The District Court for Oregon had

jurisdiction of Walker's suit for damages

under 28 USC §§ 1343, 1331 and under 42

USC §1985(3), filed April 5, 1976.

On August 3, 1976, defendants filed

a Motion to Dismiss Plaintiff's Complaint

2/ Mr. Riefenburg's letter of March 1l,

1974 states:

"In our opinion the placer location

described by Mr. Walker in his notice

recorded July 14, 1971, would not be

effective to give notice of a claim cover-

ing the ground occupied by the invalidated

Mamie lode claim. Under these circum-

stances, Mr. Walker's further occupancy

of the ground covered by the invalidated

Mamie lode claim in the absence of a per-

miet from the Forest Service or a valid

relocation of the area under the mining

laws can be prohibited. We assume you

will give Mr. Walker reasonable notice

and an opportunity to respond to any

request to remove his personal property

from the area covered by the invalidated

Mamie lode claim."

8 9

or in the Alternative for Summary Judg-

ment [R4] on the grounds: (1) "The com-

plaint does not state a valid cause of

action under 42 USC 1985. Plaintiff's

sole basis for jurisdiction is the al-

leged violation of his constitutional

rights;" [R8], and (2) "The doctrine

of official immunity requires dismissal

of the complaint." [R9]). "In support

of this motion defendants rely upon their

affidavits, pertinent portions of the

administrative file..."({R 10].

No answer having been filed, Walker

filed as a matter of course on October

15, 1976, an Amended Complaint [R 63]

and also his Motion for Summary Judgment

[R 61], supported by his Affidavit [R 69]

and by a Memorandum of Authorities (which

memorandum was omitted from the Record

on Appeal).

No answer nor any motion for summary

judgment was directed by defendants to

the Amended Complaint.

The Amended Complaint seeks damages

on two counts: (1) for violation of

constitutionally protected rights to

property and to "Due Process", and (2)

under 42 USC §1985(3) for actions outside

the scope of lawful duty in furtherance

of a conspiracy to deprive plaintiff of

his civil rights secured to plaintiff by

the Constitution and laws of the United

States.

On April 28, 1977, Magistrate Juba

filed Findings and Recommendation that

defendants motion for summary judgment

(filed prior to the Amended Complaint)

be granted. [R77, A-7].

10

The Magistrate's opinion says:

"The validity of plaintiff's placer

claim is not in issue here, however.

The issue is whether the defendants

are immune from this damage suit."

[R 77, A-10]. He said further:

"Whether or not the Regional Attorney

erred is irrelevant for purposes of

the immunity of the defendant officials

who relied upon his advice. [R 77,

A-11]).

Judge Belloni allowed defendants'

motion for summary judgment and approved

the magistrate's recommendation and

denied plaintiff's objections to the

magistrate's findings [R 88, 89 A-12]

He dismissed plaintiff's case. [R 90].

Plaintiff filed a Motion for Amend-

ment of Judgment to vacate and set aside

dismissal of plaintiff's case. [R 9l].

One of the grounds urged by plaintiff

was that defendants’ Motion to Dismiss

or in the Alternative for Summary Judg-

ment was directed only to plaintiff's

original complaint, which had gone out

of the case when plaintiff's Amended

Complaint was filed under Rule 15(c)

F.R.C.P. No motion was directed by

defendants to the Amended Complaint.

Plaintiff submitted the affidavit of

Mr. Lancefield, with exhibits. [R96

to R 107] and supporting memorandum

{R 108].

Judge Belloni denied plaintiff's

Motion for Amendment of Judgment [R 115,

A-12].

The Court of Appeals affirmed June

23, 1978 and denied plaintiff's Petition

for Rehearing September 4, 1978. A-1, A-6].

a

ll

The summary judgment upheld below

grants to defendant personnel of the

United States Forest Service immunity

from a damage action brought by plain-

tiff, whose buildings they have burned

and whose personal property they have

confiscated and sold, when so doing was

outside the scope of any statutory

authority conferred upon the defendants.

It is tantamount to a grant of absolute

immunity where the official is willing

to aver that he acted in good faith.

REASONS FOR ALLOWING THE WRIT

Unless this Court will review and

correct the erroneous decision in Walker,

the case will make a devastating inroad

upon the protection offered by the Fifth

Amendment to the Constitution against

destruction of a citizen's property by

unauthorized action of federal agents,

taken without regard to the "Due Pro-

cess" requirement.

The decision below is an important

link in a chain of creeping precedents

by which the Forest Service is attempting

to enlarge its own authority by self-help

and to seize a power,never delegated to

the agency by Congress, to drive miners

off their mining claims.

If this Court were to allow the lower

court's decision in Walker to permit

agency employees to decide for themselves

that a miner's structures,maintained on

his uncontested mining claim, located

on federal land open to mineral entry,

are in trespass and to proceed to ahate

such property as an “unauthorized occu-

pancy", without submitting the issue to

any adjudicatory proceeding by any au-

thorized tribunal, the "Due Process"

12

Clause will have lost its meaning for

a great many citizens.

The lower court's acceptance of

defendants' assertions that they were

entitled to immunity for action taken

within the scope of their official duties

ignored resolutely the fact that the

action complained of was not within the

outer limits of the federal agents'

authority to act. The evidence before

the court showed plainly that defendants'

conduct was a knowing, intentional, assump-

tion of power which the agency does not

have, and was a violation of the citizen's

right to conduct a lawful business under

the mining law by seizing and destroying

his property without observance of the

citizen's right to an adjudicatory de-

termination whether his occupancy of

the placer mining claim was lawful.

The decision below conflicts with

this Court's pronouncements in Butz v.

Economu, U.S. , 29 &. Ct.

(June 29, 1978) and cases cited therein,

that officials are liable in damages to

injured citizens when they stray beyond

the plain limits of their statutory

authority, and particularly when they

violate the fundamental principles of

fairness embodied in the Constitution,

such as a citizen's right to be protected

from confiscation of his property without

"Due Process of Law".

In Walker, as in Little v. Barreme,

2 Cranch(6 U.S.) 1970 (1804), and in

Bates v. Clark,95 U.S. 204 (1877), cited

with approval in Economu, the defendants

made seizure "not within the category or

type of seizure they were authorized to

make", 98 S. Ct. at 2902, 2903.

eT

This Court pointed out in Economu

that neither Barr v. Matted, 360 U.S.

564 (1959) nor Spalding v. Vilas, 161

U.S. 483 (1896) purported to immunize

officials who ignore limitations on their

authority imposed by law. 29 S. Ct.

2902, 2904.

In Walker, the defendants have no

qualified immunity from suit, for that

doctrine does not apply where an agent

or officer of the Government, purport-

ing to act in its behalf, has acted

either beyond the scope of his authority

or under authority not validly conferred.

United States v. Lee, 106 U.S. 196, 220,

221; Philadelphia Company v. Stimson,

223 U.S. ’ ; Noble v. Union River

Logging R. Co., 147 U.S. 165, L?l, 182;

ftadat v. Wesley, 167 U.S. 204, 222;

Scranton v. eeler, 179 U.S. 141, 152;

American School of Magnetic Healing v.

McAnnulty,197 U.S. 94, 108, 110. In

the present case, defendants were no

more authorized to confiscate property

on plaintiff's placer claim as property

of the United States than was the post-

master in McAnnulty authorized to decide

for himself that the American School of

Magnetic Healing should be denied the

use of the mails.

Conscientious performance in good

faith of unauthorized action does not

excuse violation of constitutional guar-

antees. The Fifth Circuit said in

Nesmith v. Alford, 318 F2d 110 (1963)

that when a citizen's First Amendment

rights are infringed by a police officer,

no matter how much in good faith, such

officer is answerable in damages for

such interference. The court pointed

out that liberty would be at an end if

a citizen's exercise of freedom of the

14

press, freedom of assembly, freedom of

speech, and freedom of religion were

restricted to what a conscientious

policeman in good faith regards the

community's threshold of intolerance

to be. Similarly here, if the extent

of a citizen's rights under a mining

claim location are made to depend upon

Forest Service employees' opinions as

to how their location notices are to be

interpreted, then a citizen's investment

in improvements and equipment on his

mining claim, and his opportunity to

conduct a lawful business thereon, would

have no protection from the mining laws

or the Constitution.

The decision below contradicts Wood

v. Strickland, 420 U.S. 308 (1975), which

it purports to follow, for the circum-

stances here did not present either

objective nor subjective reasonable

grounds for defendants' claim of quali-

fied immunity. The intra-agency corres-

pondence quoted at pages 6-7 above showed

the courts below that defendants were

aware that they lacked authority to

proceed against Walker's property in the

absence of any administrative contest

or court action against his placer claim.

Defendants were not entitled to

construe the Regional Attorney's letter

of March 11, 1974, p.8 above, as any

authorization to them to impound, burn

and sell Walker's property without an

adjudicatory proceeding which would

first make Walker's maintaining ‘the

property on his placer claim unlawful.

Defendants are chargeable with knowledge

that a regional attorney for Agriculture

has no authority to dispense with adjudi-

15

cation and to decide for himself the

extent or validity of a citizen's

mining claim, or to take away the right

recognized by the mining law [30 usc

612] to maintain structures and occupy

the ground for uses incidental to pros-

pecting, mining and processing activi-

ities. Strickland offers no immunity

for action which knowingly disregards

a citizen's constitutional rights, as

was done here.

Defendants' liesurely, long-contem-

plated action here was not entitled to

the indulgence discussed in Scheuer v.

Rhodes, 416 U.S. 232 (1974) where action

must be taken in haste to quell disorder

and preserve the peace. This Court said

in Economu: "Yet Scheuer and other cases

have recognized that it is not unfair to

hold liable the official who knows or

should know he is acting outside the law,

and that insisting on an awareness of

Clearly established constitutional limits

will not unduly interfere with the

exercise of official judgment." 98 S.

Ct. at 2911.

The courts below were in error when

they granted summary judgment to defend-

ants. Since defendants' excuses offered

for their conduct were obviously contrary

to long established law and constitu-

tional principles, the case presented a

plain issue which required trial.

Walker's affidavit, filed October

15,1976, with his Motion for Summary

Judgment and his Amended Complaint,

R69-72, is not limited to "conclusory

allegations of harassment" as the Court

of Appeals says [A-5]. It avers the fact

that Walker's placer entry was not

adjudicated in any government contest [R71]

16

and that defendants decided for them-

selves, without due process as required

by the Constitution of the United States

or as required by the Administrative

Procedure Act, and without authority

to make judgment, whether there was in

fact an occupancy trespass on his claim.

The affidavit avers the fact that de-

fendants proceeded to confiscate and

impound Walker's property, converted ‘

his personal property, machinery and /

equipment, burned down the buildings

on his claims which were used for pros-

pecting, mining and processing of

mineral and purported to sell Walker's

property without authority and beyond

the scope of any official duties. [R 71].

That affidavit controverts all the self-

serving affidavits filed by defendants

and raises the issue of fact whether

defendants exceeded their authority or

acted under an authority not validly

conferred. [R72]. Walker's affidavit

also raises the issue whether defendants

acted in concert pursuant to conspiracy.

[R 71].

~_-

Walker should have been allowed ‘

opportunity to cross-examine the defend- Q

ants before their self-serving affidavits

were given so much credence by the courts

below. In Economu, supra, the opinion

joined in by four justices of this Court,

who dissented in part and concurred in

part, observes that summary judgment on

affidavits and the like is inappropriate

"when the central, and perhaps the only

inquiry is the officials' state of mind.

See Wright, Law of Federal Courts, 493

(1976) (it ‘is not feasible to resolve

on motion for summary judgment cases

involving state of mind.') Subin v.

—-

~~

ss

17

Goldsmith, 224 F2d 753 (CA 2 1955)"

29 S. Ct. at 2921.

CONCLUSION

Inasmuch as the Court of Appeals'

decision conflicts with applicable

decisions of this Court and would be

a serious erosion of the protection to

citizens' property and their right to

"Due Process" provided in the Fifth

Amendment to the Constitution of the

United States, this Court should review

and correct the erroneous grant of

immunity from Walker's suit for damages

arising from defendant's exercise of

authority not validly conferred on them.

Respectfully submitted,

Cathe tim, Graby Meron

William Braly Murray

Attorney for Petitioner

1610 Standard Plaza

Portland, Oregon 97204

Telephone: (503) 226-3819

APPENDIX

Memorandum Opinion of the United

States Court of Appeals for the

Ninth Circuit

Order Denying Petition for

Rehearing

Magistrate's Findings and Recom-

mendation

Order of District Court

Page

A-12

A-1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLARD S. WALKER, )

Plaintiff-Appellant )

)

Vv. )No, 77-2694

)

JOHN O. HOFFMAN, RUSSELL B. ) MEMORANDUM

HALLIDAY, DALE L. FARLEY, MERLE )

HOFFERBER, W. P. RONAYNE, EDWARD )

LEWIS, JR., and DOES I through xX, )

Defendants-Appellees. )

{June 23, 1978]

Appeal from the United States District

Court for the District of Oregon

Before : SMITH,* WALLACE and HUG,

Circuit Judges

Willard S. Walker appeals from a judg-

ment of the United States District Court

for the District of Oregon, Robert C.

Belloni, Judge, granting summary judgment

for the amuatioes, employees of the U.S.

Forest Service. Walker alleges that the

appellees conspired to and did deprive

him of his constitutional rights to pros-

pect and mine public domain land open to

*~ The Honorable J. Joseph Smith, Senior

United States Circuit Judge for the Second

Circuit, sitting by designation.

mineral entry, and to maintain struc-

tures necessary for such mining. Walker

further maintains that the destruction of

his cabin and confiscation of his personal

property were unlawful, exceeding the

authority of the forestry officials. Ac-

cordingly, he seeks monetary damages pur-

suant to rights granted by the fifth

amendment to the U.S. Constitution and

42 U.S.C.§1985(3).

The district court adopted the find-

ings of the United States Magistrate, who

determined that the appellees' claim of

qualified immunity was supported by sub-

stantial undisputed evidence. We concur

with these findings of fact and law, and

affirm the district court's grant of sum-

mary judgment for the appellees.

Facts

Appellant Walker was the claimant

of a mining lode claim on U.S. Forest

Service lands. In an attempt to elimin-

ate unauthorized use of such property,

the Forest Service conducted mineral ex-

aminations of the claim during the years

1967-68, finding that the claim was being

used improperly as a summer home, and not

for mining. The appellant was notified

of this finding and was offered a "spe-

cial use" permit which authorized tempor-

ary occupancy of the cabin located on the

claim site.

In 1970, the Department of the Inter-

ior formally contested the validity of

appellant's claim. Appellant failed to

answer the Department's complaint, and

the mining claim was declared null and

void by the Bureau of Land Management.

The appellant did not appeal, and the

decision became final on April 1, 1971.

Appellant then recorded a "placer

claim", which covered approximately the

same ‘territory as the previously invalid-

ated lode claim. A number of structures,

including a cabin and tool shed stood on

this property.

Following the April 1 decision by

the Bureau of Land Management, the For-

est Service maintained that the presence

of the appellant's cabin and personal

property on the claim site was unlawful

under the terms of 36 C.F.R. §261.11.

It moved to eliminate these structures

following procedures mandated by the

Forest Service Manual §2811.52. In De-

cember, 1972, the appellant was ordered

to remove the disputed structures and

other property by May 1, 1973. Notice

of intention to impound property pur-

Suant to 36 C.F.R. §261.16(c) was deliv-

ered to Appellant on October 2, 1973.

The appellant did not remove his

property, nor did he accept the special

use permit offered by the Forest Service.

Following the receipt of advice from the

Regional Attorney that appellant's placer

Claim did not authorize continued occu-

pancy of the disputed site, forestry

officials confiscated and sold appellant's

personal property, and burned his cabin

and sheds. This civil rights action

followed.

Discussion

In reviewing the district court's

grant of summary judgment for the appel-

lees, we must determine whether the par-

ties presented any triable issues of fact

and, if no such issues exist, whether the

appellees were entitled to a judgment as

a matter of law. Mutual Fund Investors,

Inc. v. Putnam Management Co., 553 F2d

620 (9th Cir. 1977); 6 Moore's Federal

Practice, #56.04[1], 56.15{[1].

In the instant action forestry offi-

cials argue that they are entitled to

prevail by virtue of the qualified immun-

ity established in Scheuer v. Rhodes, 416

U.S. 232 (1974) and explicated in Wood v.

Strickland,420 U.S. 308 (1975). This

court has indicated that "a government

officer performing acts in the course of

official conduct is insuléted from damage

suits only if (1) at the time and in light

of all the circumstances there existed

reasonable grounds for the belief that

the action was appropriate and (2) the

officer acted in good faith." Midwest .

Growers Co-op v. Kirkemo, 533 F2d 455

(9th Cir. 1976); Mark v. Groff, 521 F2d

1376 (9th Cir. 19735}.

The standard here is both objective

and subjective. In order to qualify for

immunity, an officer must have reasonable

objective grounds for thinking his actions

lawful, andmust act subjectively in good

faith. In the case at bar, forestry

fficials submitted affidavits and sup-

porting documents which demonstrate that

they followed normal procedures in ter-

minating the appellant's occupancy of the

claim site. The lode claim was declared

invalid after a proceeding before the

Bureau of Land Management, and appellees

consulted the Regional Attorney to deter-

mine the legal effect of the appellant's

notice of placer claim. In short, the

appellees have demonstrated both that

they had reasonable ground for believing

their actions to be lawful, and that they

actea in good faith.

In his amended complaint and accom-

panying affidavit, the appellant does

aver that he was "harassed by forestry

officials. [App. at 65, 70]. But this

amounts to nothing more than an unsup-

ported conclusory allegation insufficient

to generate a "genuine issue" as to the

good faith of the appellees.

The non-movant has an affirmative

duty to come forward to meet a properly

supported motion for summary judgment.

A party opposing a motion for

- summary judgment simply cannot

make a secret of his evidence

until the trial, for in doing

so he risks the possibility that

there will be no trial. A sum-

mary judgment motion is intended

to "smoke out" the facts so that

the judge can decide if anything

remains to be tried. [Donnell

v. Guion, 467 F2d 290, 293 (2d

Cir. 1972)].

See also, Mutual Fund Investors, Inc. v.

Putnam Management Co., supra, F2d at

624-24; ALW. Inc. v. United Air Lines,

510 F2a 52 (9th Cir. 1975); 6 Moore's

Federal Practice #56.15[2]; 10 Wright &

Miller, Federal Practice and Procedure

§2739. The appellant has failed to meet

this requirement.

The appellees have satisfied their

burden of demonstrating that there is

no genuine issue of fact disputed in

this case, and summary judgment was

therefore appropriately granted.

Affirmd.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLARD WALKER,

Plaintiff-Appellant, No.

77-2694

ORDER

ee eee eee ee ee

JOHN O. HOFFMAN, RUSSELL B.

HALLIDAY, DALE L. FARLEY, MERLE ) Piled

HOFFERBER, W. P. RONAYNE, EDWARD ) Sept. 14,

LEWIS, JR., and DOES I through me 1978

Defendants~-Appellees. )

Before: SMITH,* WALLACE and HUG,

Circuit Judges

Appellant's Petition for Rehearing

is denied.

* Honorable J. Joseph Smith, Senior

United States Circuit Judge, Second

Circuit, sitting by designation.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WILLARD S. WALKER,

Plaintiff, Civil No.

76-320

Vv.

FINDINGS

JOHN O. HOFFMAN, RUSSELL B. and

HALLIDAY, DALE L. FARLEY, RECOMMENDA-~

MEREL HOFFERBER, W. P. RONAYNE, TION

EDWARD LEWIS, JR., and DOES

I through xX,

me eee ee ee ee ee ee ee

Defendants.

Plaintiff brings this action against

six defendants (all personnel of the

Forest Service) alleging that defendants

conspired and deprived plaintiff of pri-

vileges and rights secured by the Consti-

tution. Specifically plaintiff complains

that defendants denied him the right to

prospect and mine land open to mineral

entry and build and maintain structures

and personal property incidental to min-

ing such land. He further complains

that his cabin and personal property on

the land were seized and destroyed by

defendants. Jurisdiction is based on

28 USC §§ 1331, 1343.

Plaintiff was the claimant of a

mining claim in Josephine County known

as the Mamie Lode Claim. The Forest

Service has been making an effort in

recent years to investigate mining claims

in an attempt to identify possible unau-

thorized uses of forest land. Plain-

tiff's claim was investigated in the

years 1967-1969. The mineral engineer

determined that there was no discovery

of valuable minerals. Plaintiff was

notified of the investigation and of-

fered a special use permit.

In 1970 the Forest Service filed a

complaint with the Department of Interior

to contest the validity of plaintiff's

lode claim. Plaintiff failed to answer

the complaint. The mining claim was

declared null and void. Plaintiff did

not appeal, and the decision became

final on April 1, 1971.

After this decision, it was defend-

ant's position that the presence of plain-

tiff's cabin and property on the void

Claim constituted an unauthorized tres-

pass on forest land pursuant to C.F.R.

§261.11. The Forest Service Manual

§2811.52 sets out procedures for the

removal of these unauthorized structures.

This procedure was followed. In Decem-

ber 1972 defendants notified plaintiff

to remove the cabin by May l, 1973.

Plaintiff did not comply. Plaintiff in

the meantime had filed anotice of a

placer claim as opposed to the lode

claim that had been declared void. The

defendants asked the Regional Attorney

of the Forest Service whether this new

notice would constitute a valid mining

Claim on the ground previously occupied

l. There was a cabin located on the

Claim. A special use permit is designed

to allow the occupier of the cabin a cer-

tain amount of time to continue occupancy

in order to recoup his losses.

by the lode claim. The Regional Attor-

ney advised that it would not.

On October 2, 1973, defendants

delivered to plaintiff anotice of in-

tent to impound the structure pursuant

to 36 C.F.R. §261.16(c). Plaintiff

failed to respond to this notice and

subsequent notice. The structures

and personal property were confiscated

in September 1974. The cabins were

subsequently burned, and the personal

property was sold. On April 5, 1976,

plaintiff filed this action.

Defendants have moved for summary

judgment on the basis of immunity.

While defendants do not have absolute

immunity, a qualified immunity is avail-

able. Scheuer v. Rhodes, 416 U.S. 232

(1974). Under the qualified immunity

doctrine, the officer or employee who

is performing acts in the course of

official conduct is insulated from

damage suits if 1) at the time and in

light of all the circumstances there

existed reasonable grounds for the be-

lief that the action was appropriate

and 2) the officer ot employee acted

in good faith. Midwest Growers co-oP

v. Kirkemo, 533 F2d 455, 463 (9th Cir.

; Mark v. Groff, 521 F2d 1376,

1379-80 (9th Cir. 1975).

The Supreme Court restricted this

standard recently in Wood v. Strickiand,

420 U.S. 308 (1975). There the Court

remanded a Civil Rights action against

school board officials, saying:

The disagrrement...over the

immunity standard in this case

has been put in terms of an "ob-

A-10

jective versus a "subjective"

test of good faith. As we see it,

the appropriate standard necessar-

ily contains elements of both.

The official himself must be act-

ing sincerely and with a belief

that he is doing right, but an

act violating a student's consti-

tutional rights can be no more

justified by ignorance or disregard

of settled,indisputable law on the

part of one entrusted with super-

vision of students' daily lives

than by the presence of actual

malice. 420 U.S. at 321.

The thrust of plaintiff's argument

is that the Forest Service, under the

Department of Agriculture, does not have

authority to declare claims null and

void. The Department of Interior is

charged with seeing that invalid claims

are eliminated. See Palmer v. Dredge,

398 F2d 791, 792 (9th Cir. 1968). Thus,

the Forest Service has no authority to

declare the plaintiff's placer claim

invalid.

The validity of plaintiff's placer

claim is not in issue here, however.

The issue is whether the defendants are

immune from this damage suit.

The defendants have submitted affi-

davits attesting to their good faith

belief that their actions were legal and

proper. Even assuming that the "knew

of should have known" standard of Wood

v. Strickland, supra, applies to these

Forest Service personnel, there is no-

thing in the record to indicate they had

reason to know that their conduct was

not legal. As noted above, the defend-

ants consulted the Regional Attorney on

A-11

the validity of the subsequent placer

claim location notice. The defendants

were advised by the Regional Attorney

that the notice would not be effective

to give notice of a claim covering the

same ground occupied by the lode claim

that had been declared void. Whether

or not the Regional Attorney erred is

irrelevant for purposes of the immunity

of the defendant officials who relied

upon his advice.

Accordingly, I find that there is

no genuine issue of material fact in

dispute as to the defendants’ good faith

and reasonable belief in the appropri-

atness of their conduct. Under such

circumstances, there is no need to re-

quire defendants to face an expensive,

unnecessary trial. Economou v. United

States Dept. of Agriculture, 533 F2d

688, 696 (sa Cir. 1976). Defendants'

motion for summary judgment should be

granted.

Dated this 27 day of April, 1977.

/s/ George E. Juba

United States Magistrate

A-12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WILLARD S. WALKER,

CIVIL NO.

Plaintiff, 76-320

vs. ORDER

JOHN O. HOFFMAN, RUSSELL B.

HALLIDAY, DALE L. FARLEY,

MERLE HOFFERBER, W. P.

RONAYNE, EDWARD LEWIS, JR.,

and DOES I through X,

i

Defendants.

In this civil rights action against

federal government officials, Judge Juba

recommended granting the defendants' mo-

tion for summary judgment on the basis

of qualified immunity. I followed that

recommendation. Thereafter, plaintiff

untimely filed objections which I con-

sidered, and I again had an order entered

which granted defendants' motion for sum-

mary judgment. Now, plaintiff moves to

amend the judgment.

Many issues previously considered

are raised again by plaintiff. A mini-

mum of attention, however, is paid to

the only relevant question at this junc-

ture of this action--the defendants'

good faith and reasonable belief.

Summary judgment must stand. Defend-

ants had the right to make the motion

and test plaintiff's case. He presented

no material facts which countered the

defendants' immunity, but instead relied

upon the allegations of the complaint.

SES

>

A-13

The Federal Rules of Civil Procedure do

not allow this tactic. Fed. R. Civ. P.

56(e); Adickes v. S.H. Kress & Co.,

398 U.S. 144 (1570); Smith v. Mack

pire Inc., 505 F2d 1248 (9th Cir.

974).

IT IS ORDERED that plaintiff's

motion for amendment of judgment is

denied.

Dated this 29 day of June, 1977.

/s/ Robert E. Belloni,

United States District Judge