Petition — Brothers v. Schimke

Supreme Court, U.& “+

i FILED

JAN 15 1979

MICHAEL RODAK, !R., CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term 1978

“U8-] 112

GLORIA A. BROTHERS and

EDGAR C. NEWALL,

Petitioners,

Vv.

ARTHUR SCHIMKE, TOM OLIVER,

JAMES BELA, KEN GILBERTSON,

CHIP CARTWRIGHT, DOES IV

THROUGH VI,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

William Braly Murray

Attorney for Petitioners

1610 Standard Piaza

Portland, Oregon 97204

Telephone: (503) 226-3819

isn

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdictional Statement |

Question Presented 2

Constitutional Provision,

Statutes and Regulations

in pertinent part 3

Statement of the Case 6

Reasons for Granting the Writ 11

Similarity to Walker v. Hoffman

No. 78-724, pending on petition

for Writ of Certiorari ee

Conclusion 18

AUTHORITIES CITED

CASES

Butz v. Economu, 98 S Ct. 2894

(June 29, 1978) + ae &

National Aviation Underwriters

v. Altus Flying Service, Inc.

555 F2d 778 (1977) 17

Rholfing v. Cat's Paw Rubber Co.,

17 FRD 426 (N.D. Ill. E.D. 1954) 17,

Scheuer v. Rhodes, 416 U.S. 232

(1974) 13

16

18

ii

4

Table of Authorities (continued)

Subin v. Goldsmith, 224 F2d 753

(CA 2 1955)

Walker v. Hoffman, No. 78-724

pending on petition for writ

of certiorari in United States

Supreme Court

Wilbur v. United States ex rel.

Krushnic, 320 U.S. 306 (1932)

Wood v. Strickland, 420 U.S.

308 (1975)

The Yankee Lode Claim, 30 L.D.

289 (1900)

Treatises

Wright, Law of Federal Courts

493 (1976)

CONSTITUTION, STATUTES ETC.

Fifth Amendment to Constitution

of the United States

16 USC §482

28 USC §1331

28 USC §1343 (1), (2)

30 USC §22

30 USC §35

30 USC §612 4, 5,

36 CFR §252.1

Page

16, 17

13, 14

13

13

15

16

12

ui NL OD >

In The

SUPREME COURT OF THE UNITED STATES

October Term 1978

No.

GLORIA A. BROTHERS and

EDGAR C. NEWALL,

Petitioners,

Vv.

ARTHUR SCHIMKE, TOM OLIVER,

JAMES BELA, KEN GILBERTSON,

CHIP CARTWRIGHT, DOES IV

THROUGH VI,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

- UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

OPINIONS BELOW

The unreported opinions delivered

in the courts below are appended hereto

in the Appendix A-1 to A-9,

JURISDICTIONAL STATEMENT

The decision sought to be reviewed

was made and entered October 17, 1978.

This petition for certioriari is filed

within 90 days thereafter.

Jurisdiction to review by writ of

certiorari is conferred on this Court

by 28 USC §1254 (1).

QUESTION PRESENTED

Whether this Court should reverse

summary judgment granted below to defend-

ants, based on defendants' assertion that

good faith belief in the appropriateness

of their action entitled them to immunity

from this civil rights damage action for

alleged violation of petitioners' Fifth

Amendment rights to "Due Process" and

protection of real property against taking

without compensation, pursuant to con-

Spiracy to do so, where low-level United

States Forest Service employees acted

outside the scope of their authority and

seized petitioners' mining claim, located

on ground open to mineral entry, by post-

ing over petitioners' location notice on

a cabin, permanently fixed to the ground

by a former claimant who had abandoned

the claim, a proclamation stating:

Property of the United States. All

persons are prohibited under penalty of

the law from committing any trespass."

This question calls for correction

of four false assumptions as to legal

principles underlying many disputes

be out * similar circumstances,

ch were the basis for th

decisions below: ii a

(1) The false assumption that

an earlier locator of a cutie pred es

abandoned it, a subsequent locator does

not acquire possessory title to improve-

ments, including a cabin or other struc-

tures permanently fixed to the ground by

the earlier locator, as well as to the

ground embraced within the limits of

the claim.

(2) The false assumption that in-

validation of an earlier location of a

mining claim by administrative decision

that insufficient mineral discovery had

been made, precludes the making of a

valid subsequent location of the same

ground.

(3) The false assumption that For-

est Service employees can take upon

themselves authority to disregard a

subsequent locator's location of a

mining claim on land open to mineral

entry and seize the claim as "Property

of the United States" by posting a

notice prohibiting any person from

trespassing thereon.

(4) The false assumption that a

civil rights action charging low level

federal administrative agents with vio-

lation of Fifth Amendment rights to

"Due Process" and protection against

the taking of property in the name of

the United States without compensation,

pursuant to a conspiracy to do so,

should be dismissed without allowing

plaintiffs opportunity to prove their

allegations, when defendants aver "good

faith belief in the appropriateness

of their actions."

CONSTITUTIONAL PROVISION, STATUTES,

AND REGULATIONS IN PERTINENT 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

resources.

(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 therewith...

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 substantive

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 intefere with

use of the surface of National Forest

System lands in connection with opera-

tions 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 re-

sources is in the Secretary of the

Interior." 36 CFR §252.1.

STATEMENT OF THE CASE

The District Court for Oregon had

jurisdiction of this case arising under

the federal Constitution and the mining

laws of the United States by virtue of

28 USC §1331. The matter in controversy

exceeds the value of $10,000. The Dis-

trict Court had jurisdiction of the

counts of the complaint arising under

the Civil Rights Acts by virtue of 28

USC §1343 (1) and (2).

Petitioners, plaintiffs below,

located a gold placer mining claim in

Grant County, Oregon, on July 29, 1975.

This occurred more than a year after a

Mrs. Gladys Wagner had abandoned the

Claim and failed to appeal an administra-

tive determination invalidating her claim

covering the same ground. R 28. Forest

Service employees had been urging Mrs.

Wagner to dismantle the two old cabins

on the ground and to remove her personal

possessions therein, which she declined

to do. R14, 28. Plaintiff Brothers

accompanied Mrs. Wagner to a meeting

where this was discussed with Forest

Service personnel. R 14.

Defendant Chip Cartwright,of the

Baker Forest Service office, assured

plaintiff Brothers that the ground was

open for her or any other citizen to

locate, and plaintiff Brothers and her

brother, Edgar Newall, did so the next

day. R 42-A

Plaintiffs' affidavits establish

that there was no contractual relation

between themselves and the former claimant,

and their location was based on their own

prospecting of the ground. R 42-B to

R 42-1.

A few days after plaintiffs made

their location of this open ground,

defendant Schimke, the District Ranger,

seized in the name of the United States

plaintiffs' mining claim, which had not

been the subject of any administrative

or court proceeding to determine its

validity.

Plaintiffs’ complaint alleges:

"Said defendants, for the purpose of

harassing the plaintiffs, in violation

of their civil rights, entered upon

plaintiffs' mining claim and posted a

sign on plaintiffs' cabin on said claim

reciting that this is property of the

United states. Said sign was posted

over plaintiffs' location notice on said

mining claim. Defendants told plaintiff

Brothers that she had no right to be on

said land and that defendants were going

to burn down or destroy her cabins and

that they would confiscate plaintiffs'

personal property and equipment on said

claim." R 3. “That proximately caused

by said deprivation of their civil rights,

plaintiffs have been denied the right to

make lawful use of their property under

threat of penalties." R 3.

On April 30, 1976, petitioners

filed a Complaint for damages for depri-

vation of civil rights, for conspiracy

to deprive plaintiffs of civil rights,

and for failure to protect plaintiffs

against conspiracy to deprive them of

civil rights, and demanded a jury trial.

This action was brought against Arthur

Schimke and Tom Oliver and Does I through

X in their individual capacities and

not as agents of the United States

Forest Service, seeking $100,000 gen-

eral damages and $200,000 punitive

damages for actions outside the scope

of any lawful duty. R 1-4.

Defendants Schimke and Oliver did

not answer the complaint. On August 6,

1976, they filed a Rule 56 motion for

summary judgment R 6, supported by a

memorandum of law, R 7-10, and affida-

vits and answers to interrogatories,

R 11-32, urging that defendant Oliver

had nothing to do with posting any

signs on the claim and that defendant

Schimke had acted in good faith belief

that his actions were done on reason-

able grounds in the performance of

what he believed to be his official

duties. Defendants’ disculpatory

statements did not deny knowledge of

plaintiffs' having located their claim

but stated defendants' contention that

invalidation of the earlier claim on

the ground had caused the structures

to become property of the United

States. R 28. Defendant Schimke

denied that he intended to burn plain-

tiffs' buildings or to confiscate and

sell their personal property. R 15.

On September 29, 1976, petitioners

filed in answer to defendants' motion

for summary judgment a memorandum of

authorities, R 43 to R 48, and the affi-

davit of Gloria Brothers, R 40 to 42-I,

incorporating affidavits made September

11 and 12, 1976, by Gloria Brothers and

Edgar Newall in a case for inverse con-

demnation arising out of the same

incident.

Mrs. Brothers' affidavits contro-

vert defendants' protestations of good

faith belief that they were acting in

performance of official duty by averring

that defendants knowingly acted contrary

to law and in excess of their authority,

with knowledge that they abused their

official power and had no reasonable

ground for confiscating petitioner's

property, and did not act in good faith

but maliciously and vindictively in re-

taliation for Mrs. Brothers' having

complained to the police about an

earlier incident when employees of the

Forest Service had confiscated her min-

ing claim in Baker County and had

burned her cabin thereon without notice

or hearing and without authority. R 40

to 41, R 42-C.

These affidavits also show that the

defendants had been alerted to Mrs.

Brothers' intention to locate the ground

abandoned by Mrs. Wagner because, be-

fore locating the Vivian Revived Placer

Claim, she had inquired and had been

informed by Chip Cartwright that the

ground could be located by her or any

other person; it had not been withdrawn

from mineral entry. R 42-A. Mr. Newall's

affidavit corroborates this. R 42-H.

On September 29, 1976, petitioners

also served and filed an amended com-

plaint as a matter of course, pursuant

to Rule 15 a F.R.C.P. R 34 to 38. They

named as additional defendants three of

the "John Does": James Bela, Ken

Gilbertson and Chip Cartwright, and

restated the position taken in their

original complaint in three counts:

first, for violation of their constitu-

tional rights; second, a count under

10

42 USC §1985(3) charging performance

of overt acts in furtherance of a con-

spiracy to deprive petitioners of their

constitutionally protected property,

and third, 1 count under 42 USC §1986

for failure to protect petitioners

from such conspiracy.

None of the defendants made any

response to the Amended Complaint.

Before the time to answer had elapsed,

on November 8, 1976, United States

District Judwe Robert Belloni approved

the Recommendation and Order entered

by Magistrate George Juba and granted

summary judgment to defendants and

dismissed the action. R 89-92. A-6

to A-9.

The decision below upholds defend-

ants' assertion of immunity as federal

employees on the basis of their aver-

ments that they acted in good faith

belief in the reasonableness of their

conduct. R90. The District Court's

decision is predicated upon the assump-

tion that "there is no showing that

these defendants were even aware of

plaintiffs' attempted relocation at

the time that the cabins were posted."

R91. But when the sign prohibiting

any person under penalty from tres-

passing on property of the United States

was posted by defendants, they must

have been aware of petitioner's loca-

tion of their claim, for defendants

made no attempt to deny having posted

the sign "over plaintiffs' location

notice on said mining claim", as

alleged in the complaint. R 3.

Defendants never denied having been

aware of petitioners' location of

their mining claim.

11

The memorandum opinion of the

Court of Appeals for the Ninth Circuit

assumes that the sign posted by defend-

ants deprived plaintiffs of their right

to prospect the claim that plaintiffs

had located. a-2. The opinion holds

that assuming further that plaintiffs

had a possessory interest in the cabins

[seized without any authority and

without observing any shred of "Due

Process of Law"], it was still correct

for the district court to grant summar-

ily defendants' assertion that their

"good faith belief in the reasonable-

ness of their action" immunized defend-

ants from this civil rights lawsuit.

A-3 to A-5.

The decision below ignores the

fact that federal administrative agents

have no immunity from lawsuits claiming

damages for action outside the scope of

such agents' official authority which

deprives plaintiffs of constitutionally

protected rights.

REASONS FOR GRANTING THE WRIT

This honorable Court should review

and correct the Ninth Circuit's having

twice within a period of five months,

from June to November 1978, issued

rulings which grant immunity from

suit to federal administrative agents

whose actions went beyond the limits

of their authority and violated

citizens' property rights and right

to "Due Process of Law" guaranteed by

the Fifth Amendment to the Constitution

of the United States. These decisions

contradict the rulings of this Court

and should therefore be reversed.

12

This Court has ruled many times that

the doctrine of qualified immunity

from suit does not apply to an agent

or officer of the United States who

goes beyond his actual authority

when seizing property in the name

of the United States. In the recent

case of Butz v. Economou, 98 S. Ct.

2894 (June 29 1978) this court re-

affirmed the longstanding rule that

a federal official may not with im-

punity ignore the limitations which

the controlling law has placed upon

his powers.

Here, defendants' assertion that

they had acted in performance of their

official duties raised at best a

genuine issue of material fact which

made summary judgment for defendants

inappropriate. Plaintiffs' opportunity

to prove their case should not have

been cut off before trial.

Defendants' authority to act

with respect to mining claims is

limited by the mining law. 30 USC

§612 prohibits agents of the United

States from taking any action which

would materially interfere with a

mining locator's prospecting, mining

or processing activities or uses

reasonably incident thereto. And

the "Due Process of Law" provision

of the Fifth Amendment has the effect

of requiring agents of the United

States to respect a locator's pos-

sessory title to all portions of

a mining claim until after an admin-

istrative contest or a court pro-

ceeding has terminated the locator's

rights acquired by acts of location.

13

This Court has recognized that

a located mining claim is "property

in the highest sense of the term."

Wilbur v. United States ex rel. Krushnic,

320 U.S. 306 (1932). It is constitu-

tionally protected against seizure

as "Property of the United States".

The decision below, granting

immunity for action outside the scope

of official authority which deprives

a citizen of constitutional rights,

is contrary to this Court's rulings

in Wood v. Strickland, 420 U.S. 308

and in Scheuer v. Rhodes, 416 U.S. 232

(1974) and in Butz v. Economu, 98 S.Ct.

2894 (1978). All these cases deny the

qualified immunity defense where the

defendants' action went beyond their

authority.

SIMILARITY TO WALKER v. HOFFMAN

No. 78-724 PENDING ON PETITION

FOR WRIT OF CERTIORARI.

The Ninth Circuit's opinion states

A-4 that the present case presents

"essentially the same fact situation"

and is disposed of by its decision in

Walker v. Hoffman. That case is the

Subject of petition for writ of cer-

tiorari No. 78-724 now pending before

this honorable Court.

Petitioners respectfully submit

that it would be appropriate for this

Court to review both cases together,

for both cases contradict the same

legal principles established by this

Court's decisions.

In both cases, defendants are

low level employees of the United

States Forest Service who disregarded

plaintiffs' having located mining

claims on lands open to mineral entry.

14

The essential feature of both

cases is defendants' disregard of

the citizens' rights to "Due Process

of Law" when they seized in the name

of the United States plaintiffs'

mining claims and the structures

thereon, without first conducting any

administrative or court proceeding to

extinguish the locators' constitutionally

protected property rights.

Unless this Court will review and

correct Walker v Hoffman and Brothers

and Newall v. Schimke et al., the

effect of these cases will be to assure

federal administrative agents that they

will be imnune from lawsuits seeking

damages for unauthorized seizure of

citizens' property rights, if the agents

aver that they had acted in good faith

belief that they were performing offi-

cial duties. The property owners'

right to "Due Process" will lose any

meaning.

It is important to a great many

citizens for this Court to grant cer-

tiorari and to correct false assumptions

as to legal principles which vitiate

the decisions below in both cases. At

the present time, the Forest Service

is carrying on a campaign to evict many

miners from structures needed for shel-

ter and for storage of mining equipment

under the pretext that location of the

mining claims did not entitle the miners

to possession of structures abandoned

on the claims by earlier locators.

Unless the Court will review and correct

Walker v. Hoffman and the present case,

the Forest Service will urge the erron-

eous decisions below as precedents to

justify their unjust and oppressive

practice.

15

(1) This Court should make it

clear that buildings abandoned by a

former claimant, like other improve-

ments firmly affixed to the ground,

are part of the real property, and

a new location of the mining claim

vests in the locators possessory

title to such buildings and improve-

ments as well as to the ground em-

braced within the boundaries of the

claim. The Interior Department has

so recognized for long years. The

Yankee Lode Claim, 30 L.D. 289 (1900).

In Brothers & Newall, the Forest

Service, through defendant Chip Cart-

wright, officially notified Mrs.

Brothers before petitioners located

their claim that the ground was open

for her or any other citizen to lo-

cate. R 42-A. This was official

recognition that the former claimant

had abandoned the claim. An aban-

doned mining claim reverts to the

public domain of the United States,

but a new location segregates every

part of the mining claim from the

public domain and vests possessory

title in the locators.

(2) There is need for this Court

to make clear that invalidation of an

earlier location of a mining claim by

administrative decision that insuffi-

cient mineral discovery had then been

accomplished, does not affect a subse-

quent location of the same ground.

The earlier ruling is not res judicata

and does not control the new location.

(3) This Court should correct the

false assumption that Forest Service

16

can take upon themselves authority to

disregar a subsequent locator's

location of a mining claim on land

open to mineral entry and seize the

Claim as "Property of the United States"

by posting a notice prohibiting any

person from trespassing thereon.

Until invalidated by a proceeding

which satisfies the locator's right

to "Due Process", the claim must be

respected by federal employees. It

is their duty to observe the mining

law.

(4)The Court should correct the

false assumption that a civil rights

action charging low level federal].

administrative agents with violation

of Fifth Amendment rights to "Due

Process" and protection against the

taking of property in the name of

the United states without compensa-

tion, pursuant to a conspiracy to do

so, should be dismissed without allow-

ing plaintiffs opportunity to prove

their allegations, when defendants

aver "good faith belief in the appro-

priateness of their actions."

In Butz v. Economu, 93 S Ct.

2894, the opinion of four members of

this Court, concurring in part and

dissenting in part, recognizes that

summary judgment on affidavits and

the like is inappropriate when the

central, and perhaps only, inquiry

is the official's state of mind.

(Citing Wright, Law of Federal Courts

493 (1976) and Subin v. Goldsmith,

224 F2d 753 (CA 2 1955).

The statements made by defendants

in the present case to support their

17

motion for summary judgment studiously

substituted mention of Mrs. Wagner's

earlier claim and avoided mention of

petitioner's current location of the

ground. They were an incomplete basis

for summary judgment and plaintiffs

should have been allowed opportunity

to impeach this testimony at a trial.

As the Second Circuit pointed out in

Subiin v. Goldsmith, Particularly where,

as here, the facts are peculiarly

in the knowledge of defendants or

their witnesses the plaintiff should

have opportunity to impeach them at

a trial." 224 F 2d 752, 758 (2d Cir.

1955). The court explained that in

such circumstances, failure of the

party opposing summary judgment to

file counter-affidavits does not

compel acceptance as true of facts

alleged in the movant's affidavits.

Similarly, the Tenth Circuit

stated in National Aviation Under-

writers v. Altus Flying Service, Inc.,

555 Fad 778 (1977) that affidavits

are not a substitute for trial, and

summary judgment is improper where

the issue turns on credibility.

In discussing the proof of a

conspiratorial agreement, the court

observed in Rholfing v. Cat's Paw

Rubber Co., 17 FRD 476 (N.D. I1l.

E.D. 1954) that the issue of conspir-

acy is always an issue of fact.

Actual proof of a conspiratorial

agreement cannotk in the nature of

things, usually be made, so that it

must often be inferred from proof

of acts of the parties under circum-

stances in connection therewith.

18 19

When confronted with a defendant's

sworn answer, affidavit and answers to Unless the erroneous decisions

interrogatories denying participation in Walker v. Hoffman and the present

in any conspiracy and disclaiming case are reviewed and corrected, low

knowledge of such conspiracy, the level federal administrative employees

court declined to grant the defendant's will be encouraged to trample upon

motion for summary judgment, even the rights of subsequent locators of

though plaintiffs did not submit any mining claims.

counter-affidavits, as contemplated ;

by Rule 56, but held that the issue Respectfully submitted,

of conspiracy remained a material

issue. In the present case also, LM Ul, - 5

this issue of fact was not suitable |

for summary disposal. . William Braly Murray

Attorney for Petitioners

CONCLUSION 1610 Standard Plaza

Portland, Oregon 97204

Low level administrative agents Telephone: (503) 226-3819

who seize in the name of the United

States mining claims and structures

thereon, when the locators' posses-

sory title has not been invalidated

by any administrative or court pro-

ceedings, are acting outside the

scope of any official authority, and

these agents are not entitled to

claim immunity from damage actions

for deprivation of the locators'

property rights and right to "Due

Process of Law" guaranteed by the

Fifth Amendment to the Constitution

of the United States.

Citizens intured by deprivation

of constitutional rights should not

be summarily cut off from proving

their cause of action, brought either

directly under the self-executing

provisions of the Constitution or

under the Civil Rights Acts.

re

APPENDIX

Page

Memorandum Opinion of the

United States Court of Appeals

for the Ninth Circuit A-1

Magistrate's Recommendation

and Order of the District

Court for the District of

Oregon A- 6

A-1

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLORIA A. BROTHERS and

EDGAR C. NEWALL,

No. 77-1093

Plaintiffs-Appellants,

MEMORANDUM

Vv.

ARTHUR SCHIMKE, TOM OLIVER,

JAMES BELA, KEN GILBERTSON,

CHIP CARTWRIGHT, DOES IV

THROUGH VI,

meee ee eee ee ee

Defendants~-Appellees.

Appeal from the United States District

Court for the District of Oregon

*

Before: VAN DUSEN, WRIGHT and GOODWIN,

Circuit Judges.

The plaintiffs, Brothers and Newall,

sued several forest service officials

for deprivation of property, alleging

a conspiracy to deprive them of property

and negligent failure to prevent the

conspiracy. The defendants moved for

summary judgment, claiming immunity as

federal officials because they had

acted reasonably and in good faith

within their official capacities.

Upon the plaintiffs' failure to

present specific facts beyond the mere

allegation of a conspiracy, the district

court granted summary judgment for the

defendants. The only issue of conse-

* Senior Circuit Judge for the Third

Circuit

quence is whether summary judgment was

properly granted. We affirm.

The property of which the plain-

tiffs were allegedly deprived is a

mining claim on which two cabins are

located. The claim had previously been

held by Mrs. Wagner, a friend of the

plaintiffs.

In February 1974, the Department

of the Interi: . declared Mrs. Wagner's

Claim to be invalid. The Forest Ser-

vice wrote to her several times that if

she did not remove the cabins, they

would become the property of the United

States. When she failed to act, forest

service officials met with her and

plaintiff Brothers on July 28, 1975, and

advised her of a July 31, 1975 deadline

to remove her property. Offers by the

officials to assist in the removal

were declined by Mrs. Wagner.

The day after the meeting, unknown

to the forest service officials, plain-

tiffs filed a mining claim coinciding

with the boundaries of the Wagner claim.

On July 31, 1975, defendant Schimke

posted a sign on the cabins stating

that they were United States property

and trespass was prohibited under

penalty of law.

The plaintiffs assert that the sign

interfered with and deprived them of

their right to prospect the claim.

Although they have not clearly estab-

lished whether this is the case, we

shall resolve this threshold question,

for purposes of this analysis, in the

plaintiffs' favor.

A-3

It is also unclear from the briefs

and record whether the plaintiffs assert

that the posting of the sign deprived

them of the use of the cabins. If so,

they would have to show a possessory

interest in them. It is well settled

that buildings abandoned by a former

claimant whose claim was invalidated

become the property of the United States.

The question here is whether the

cabins were abandoned before the plain-

tiffs located their claim. The author-

ity most heavily relied upon by the

plaintiffs, The Yankee Lode Claim,

30 L.D. 289 (1900), deals onlywith the

rights of prior and subsequent mining

claimants as against each other rather

than the rights of a claimant as against

the United States. We conclude that

the plaintiffs failed to show a posses-

sory interest in the cabins. See

Brothers v. United States, No. 75-972

D. Ore. June 9, 1977), appeal docketed

No. 77-3044 (9th Cir. Sept. 6, 1977),

an unpublished disposition of an action

for inverse condemnation by these same

plaintiffs in which the court held that

they had shown no possessory interest

in the cabins and that, even if they

had, they had shown no value of the

cabins entitling them to an award.

Even if the plaintiffs could show

an interference with their rights to

prospect and could establish that they

had a possessory interest in the cabins,

the question remains whether the mere

allegations of conspiracy should pre-

clude summary judgment for defendants

based on a federal immunity defense.

eee

The plaintiffs argue that summary

judgment is not appropriate in civil

rights and conspiracy actions. This

court's opinion in Walker v. Hoffman,

No. 77-2694 (9th Cir. June 23, 1978),

disposes of the issue.

Walker and Brothers present essen-

tially the same fact situation, with

the exception that the Forest Service

officials actually confiscated and

destroyed the appellant's property

in Walker but only posted a "No

trespassing" sign in Brothers. Appel-

lant in Walker alleged that the offi-

cials "conspired to and did deprive

him of his constitutional rights" in

violation of 42 U S.C. §1985(3).

Walker at - There, as here, the

officials defended that they were en-\

titled to qualified immunity because

they reasonably believed the action

was appropriate and they acted in good

faith. See Barr v. Matteo, 360 U.S.

564, 565 (1959); Mark v. Groff, 521

F2d 1376, 1380 (9th Cir. 1975).

The court in Walker found that

appellant's complaint and affidavit

alleging harassment by the officials,

without more, constituted an "unsup-

ported conclusory allegation insuf-

ficient to generate a ‘genuine issue'

as to the good faith of appellees."

Walker at. Appellants' allega-

tions here are equally unsupported.

In reliance on Tillman v. Wheaton-

Haven Recreation Association, 517 F2d

th Cir. 1975), the plaintiffs

argue that they are not required to

prove bad faith. Tillman is inapposite

ee

as it involved a suit against corporate

directors and the defense of immunity

of federal officers is not at issue.

There was no genuine issue of

material fact regarding the bad faith

of the defendants, therefore they are

entitled to prevail on their limited

immunity defense. The district court

correctly granted summary judgment.

AFFIRMED.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

GLORIA A. BROTHERS and )

EDGAR C. NEWALL, )Civil No.

) 76-409

Plaintiffs, )

) RECOMMENDATION

Vv. )AND ORDER

)

ARTHUR SCHIMKE, TOM OLIVER,)

JOHN DOES I through X, )

)

)

Defendants.

Plaintiffs, brother and sister,

are alleged owners of an unpatented

mining claim in Eastern Oregon. They

bring this action against defendant

Forest Service personnel in their

individual capacities, alleging viola-

tions of plaintiffs' civil rights.

Jurisdiction is based on 28 U.S.C.

§1943.

The mining claim was originally

known as the Vivian Placer Claim. The

Claimant was a Mrs. Wagner. However,

on February 7, 1974, her claim was

declared null and void by a Department

of Interior Administrative Law Judge,

and Mrs. Wagner did not appeal. Situ-

ated on the claim were two small cabins

and assorted mining equipment. District

Ranger Arthur Schimke, defendant in this

action, notified Mrs. Wagner by letter

that the cabins would have to be re-

moved from federal property by July 3l,

1975. A meeting was held in defendant's

office on July 28, 1975, attended by

Mrs. Wagner and plaintiff Brothers. At

the meeting the Forest Service person-

nel explained that all the personal

property on the claim would become

property of the United States if it

was not removed by July 31. Offers by

the personnel to assist in the removal

were declined by Mrs. Wagner. Mr.

Cartwright, staffofficer of the Baker

Ranger District, specifically called

plaintiff Brothers at her request after

the meeting to tell her that the cabins

would be posted after July 31, 1975.

The complaint alleges that the

plaintiffs' mining claim was located

on July 29, 1975, one day after the

meeting. On July 31, defendant Schimke

had an employee post the signs on the

cabins declaring that they were govern-

ment property. It is this act of post-

ing for which plaintiffs are alleging

damages in the sum of $300,000. A

similar claim has been filed against

the United States in a separate action.

Defendants move for summary judg-

ment on the basis of immunity as federal

employees. A qualifie. immunity is

available to these federal employees

if (1) at the time of the action and

in light of all the circumstances, there

existed reasonable grounds for the

belief that the action was appropriate,

and (2) the officers acted in good faith.

Scheuer v. Rhodes, 416 U.S. 232, 247-243

4); Mark v. Groff, 521 F2d 1376,

1379-1380 (9th Cir. 1975); Williams v.

Wright, Civil No. 74-614 (D. Ore. August

10, 1976.

In support of their motion defendants

have submitted affidavits and answers

under oath attesting to their good faith

belief in the reasonableness of their

conduct. Defendant Tom Oliver says

that he had nothing whatsoever to do

with posting the signs on the claim.

Defendant Schimke says that he had the

signs posted because he believed that

the claim had been declared null and

void in the administrative proceeding.

Both defendants deny any knowledge of

the alleged "conspiracy" to violate

plaintiffs' civil rights.

When defendants set forth such

affidavits, and plaintiffs fail to

respond with specific facts regarding

the defendants' good faith reasonable

grounds, there is no need to require

defendants to face an expensive, un-

necessary trial. Summary judgment

is appripriate. Economu v. U.S. Dept.

of Agriculture, 535 F 2d 688, 696

(24 Cir. 1976). Plaintiffs' countering

affidavits in this instance are insuf-

ficient to defeat summary judgment.

Although plaintiff Brothers speaks of

a conspiracy among Forest Service per-

sonnel to retaliate against her because

of an incident on another mining claim

in 1966, there is no evidence that

these defendants were (1) aware of the

previous incident, or (2) were acting

with ill motive in this incident. In

fact, there is no showing that defend-

ants were doing anything other than post-

ing signs on a claim that they believed

had been declared void. Plaintiffs'

memorandum goes into much length to

establish that the Department of the

Interior, and not the Forest Service

under the Department of Agriculture,

has sole authority to determine the

validity of mining claims. But that

misses the point. There is no showing

that these defendants were even aware

of plaintiffs' attempted relocation

at the time that the cabins were posted.

Accordingly, defendants’ motion

for summary judgment should be granted

and the action against them dismissed.

Dated this 5th day of November,

1976.

fs/ George E. Juba

United States Magistrate

After review of the file and record

in this case, I approve the foregoing

recommendation.

IT IS ORDERED that defendants'

motion for summary judgment is granted

and the action against them is dis-

missed.

Dated this 8th day of November,

1976.

{sf Robert E. Belloni

Unite tates District Judge