Petition — Richardson v. United States

In The

SUPREME COURT OF THE UNITED STATES

October Term 1979

No. ~~ fae

ry, a me: A . Pp

NED N. RICHARDSON and DOROTHY

M. RICHARDSON,

Petitioners,

| a

CECIL ANDRUS, SECRETARY OF THE

INTERIOR OF THE UNITED STATES

OF AMERICA,

Respondent.

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 Plaza

Portland, Oregon 97204

Telephone: (503) 226-3819

TABLE OF CONTENTS

Page

Petition for writ of certiorari

to the United States Court of

Appeals for the Ninth Circuit 1

Opinions below 2

Jurisdiction 2

Question Presented 3

Statute in Pertinent Part 3

Statement of the Case 4

Reasons for granting the writ 5

Conclusion

APPENDIX

Order denying Petition for

Rehearing, U.S, Court of

Appeals 9th Circuit July 9, 1979 A-1l

Opinion of Court of Appeals

May 11, 1979 A-2

30 U.S.C. §612 A-12

16 U.S.C. §551 A-14

16 U.S.C. §478 A-15

43 CFR §3712.1 A-15

Testimony, Committee on

Interior and Insular Affairs

hearing on S-1713, S. Rept.

No. 554, 84th Cong. lst Sess.

1955, pages 65, 66 A-16

ii

U.S. District Court for Oregon

Findings of Fact and Conclusions

of Law March 7, 1977 Opinion

U.S, District Court for Oregon

Final Judgment and Decree

May 25, 1977

TABLE OF AUTHORITIES CITED

Cases

Converse v. Udall, 399 F2d 616

(9th Cir. 1967) :

Ernst & Ernst v.Hochfelder,

425 U.S. 187 (1976)

Gwillim v. Donnellan, 115 U.S,

45, 49, 50 (1885)

Mantle v. Noyes, 9 Pac. 856, 862

New York v. U.S.I.C.C. et al.,

342 U.S. 882

Noyes v. Mantle, 127 U.S. 348

(1888)

Pennsylvania Coal Co. v, Mahon,

260 U.S. 393

Silver Bow Mining and Milling

Company v. Clark, 9 Pac. 570,

574, 576

Teller v. United States, 113 Fed

273 (8th Cir. 1901)

Union Oil Co, v,. Smith, 249 U,S,

337, 348, 349 (1919)

Page

A-19

A-36

Page

10

15

10

10

13

10

15

10

12

10

a

Table of Authorities (continued)

United States v. Curtis-Nevada

Mines, Inc., 415 F Supp 1383

(E. D. Cal. 1976)

United States v. Etcheverry,

230 F2d 193 (10th Cir, 1956)

United States v. Nogueira,

403 F2d 816 (9th Cir, 1968)

United States v. North American

Transportation and Trading Com-

pany, 253 U.S. 330 (1920)

United States v. Rizinelli,

182 Fed. 675 (D, Idaho 1910)

United States v. Toole,

224 F Supp 440 (D. Mont, 1963)

Wilbur v. United States ex rel,

Krushnic, 280 U.S. 306 (1930)

STATUTES

Organic Administration Act of

1897, 16 U.S.C. §482

16 U.S.C. §551

16 U.S.C. §478

28 U.S.C. §1254(1)

28 U.S.C. §1291

28 U.S.C. §1345

30 U.S.C. §22

Page

13

12

12

10

12

12

10

30 U.S.C. §612 3.3,5,4,9

iv

Table of Authorities (continued) Page

PERIODICALS AND TREATISES

Congressional Record, Senate 1911

Feb. 19, 1974 14

Committee on Interior and Insular

Affairs, hearing on S-1713,

S. Rept. No. 445, 84th Congress,

lst Session, 1955, pp. 65, 66 7

House Report No. 730, U.S, Code,

Cong. & Admin. News, 1955, PP.

2482-2483 7,8,9

Mineral Facts and Problems,

published by Bureau of Mines,

U.S. Dept. of the Interior,

1970 ed. p. 538 11

William E, Simon, "A Time for

Truth", McGraw Hill, New York

1978 16

In The

SUPREME COURT OF THE UNITED STATES

October Term 1979

No.

NED N. RICHARDSON and DOROTHY M,

RICHARDSON,

Petitioners,

7.

CECIL ANDRUS, SECRETARY OF THE

INTERIOR OF THE UNITED STATES OF

AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

The petitioners, Ned N. Richardson

and Dorothy Richardson, pray that a writ

of certiorari issue to review the judg-

ment and decision of the United States

Court of Appeals for the Ninth Circuit

entered on May 11, 1979 and denial of

Petition for Rehearing filed July 9, 1979.

OPINIONS BELOW

The unreported opinion of the United

States Court of Appeals is set forth in

the Appendix A-2,

The Court's order denying petitioners'

Petition for Rehearing is set forth in the

Appendix A-1l

The unreported opinion of the United

States District Court for the District of

Oregon is set forth in the Appendix A-19.

JURISDICTION

The Supreme Court of the United States

has jurisdiction under 28 U.S.C. 1254(1).

The United States Court of Appeals

for the Ninth Circuit had appellate juris-

diction under 28 U.S.C. 1291.

The United States District Court for

the District of Oregon had original juris-

diction under 28 U.S.C. 1345.

The United States Forest Service,

Department of Agriculture had no juris-

diction or authority over defendants'

mining claims or mining methods under

30 U.S.C. 612.

Your petitioners file their Petition

for Writ of Certiorari within 90 days

from July 9, 1979, when their Petition

for Rehearing was denied by the United

States Court of Appeals for the Ninth

Circuit.

QUESTION PRESENTED

Whether a permanent injunction pro-

hibiting bulldozing and blasting and

grant of money judgment for the U.S.

Forest Service, Department of Agriculture,

were appropriate under 30 USC 612, where

defendants dug two trenches by bulldozing

and blasting and extracted and mined there-

from some 30 tons of copper ore from tleir .

perfected and valid mining claims, and

where the money judgment awarded to Fores-

try for its costs plus profit for filling

and destroying defendants' mine was en-

tered without hearing and proof of reason-

ableness.

STATUTE IN PERTINENT PART :

30 U.S.C.612(b); Reservation in the

United States to use of the surface and

surface resources

Rights under any mining claim here-

after located under the mining laws of

the United States shall be subject prior

to issuance of patent therefor, to the

right of the United States to manage

and dispose of the vegetative surface

resources thereof and to manage other

surface resources thereof (except min-

eral deposits subject to location under

the mining laws of the United States).

Any such mining claim shall also be

subject, prior to issuance of patent

therefor, to the right of the United

States, its permittees, and licensees,

to use so much of the surface thereof

as may be necessary for such purposes

or for access to adjacent land; Pro-

vided, however, That any use of the

surface of any such mining claim by the

United States, its permittees or licen-

sees, shall be such as not to endanger

or materially interfere with prospecting,

mining or processing operations or uses

reasonably incident thereto; .. .

(30 U.S.C. 612 is set forth in its entirety

in the Appendix A-12.)

STATEMENT OF THE CASE

Between 1970, when petitioners lo-

cated lode claims for copper in Skamania

County, Washington, on national forest

land open to mineral entry, and 1973,

when the Forest Service stopped their

operation, petitioners worked diligently

and expended some $40,000 in development.

On one area, Richardson dug a trench ap-

proximately 75 x 65 x 12 feet deep, an

excavation of some 685 cubic yards. In

another area, he dug a second trench

approximately 300 x 80 to 100 feet wide

and 15 feet deep, an excavation of ap-

proximately 1,375 cubic feet. (R 25). He

winched copper ore out of the pit and

stockpiled it in approximately 155 bar-

rels (Tr 157) before the U.S. Forest Ser-

vice filed action in the name of the

United States in 1973 to permanently

enjoin petitioners from working their

mining claim by bulldozing and blasting.

The District Court rejected the

Government's claim for ma@ney damages for

alleged removal of timber and alleged

damage to a stream and a road. A-23,

A-24. The evidence showed that Richard-

son's trenching was exposing a large

deposit of low-grade copper ore, which

the Government's expert, Dr. Grant, and

Mr. Moore, forestry engineers, recog-

nized would be of interest to a large

mining company. Ex 26, R 138.

The validity of the mining claims

was not at issue, A-20. No contention

was offered that petitioners ever attempted

or intended to make use of the mining

claims or surface resources thereon for

any non-mining purpose. The Government

admitted as an Agreed Fact in the Pretrial

Order that petitioners “are lawfully in

‘possession of said claims and have the

right to explore, develop and exploit

the same..." (R 25).

The objective of Forestry's case was

to forbid Richardson from working his

mining claims by digging holes in the

ground. The courts below enjoined the

Richardsons permanently from blasting

and bulldozing to conduct their mining

activities and awarded to the Forest

Service a money judgment to cover its

cost, plus profit, for filling in

Richardson's mine workings, which would

prevent him from extracting any more ore.

REASONS FOR GRANTING

WRIT OF CERTIORARI

This is a case of first impression.

A-7. It involves an important question

of federal law which has not been, and

which should be, settled by this Court.

The unprecedented decision below reverses

the meaning of the mining law, 30 USC 612.

The decision below grants to the Forest

Service power which Congress had with-

held,

The Surface Resources Act of July 23,

1955, 30 U.S.C. 612(b), makes unpatented

mining claims subject to the right of the

Government "to manage and dispose of the

vegetative resources and to manage other

surface resources thereof, except mineral

deposits subject to location under the

mining laws of the United States," More-

over, it provides: * That any use of the

surface of any such mining claim by the

United States, its permittees or licensees,

shall be such as not to endanger or mater-

ially interfere with prospecting, mining

or processing operations, or uses reason-

ably incident thereto.’ [pp. 3-4 supra,

A-12].

Since mineral deposits are expressly

excluded from management by the United

States or its agencies, there is nothing

in the Act which would restrict the loca-

tors from prospecting or mining their

mineral deposit by bulldozing and blasting.

The District Court said: "This court

need only determine whether defendants

have violated that statute [30 U.S.C. 612].

A-30. He found that defendants exposed

and extracted copper ore by means of bull-

dozing and blasting on their mining claims

and thereby violated 30 U.S.C. 612. The

Court of Appeals affirmed, saying, “The

Surface Resources Act of July 23, 1955 ...

must be relied upon to uphold the decree

of the District court.” A-8. The courts

below misinterpreted the very section

which Congress put into the statute to

protect mine locators from interference

by government agencies with "prospecting,

mining or processing operations or uses

reasonably incident thereto." The courts

twisted the meaning of "uses reasonably

incidental thereto"[i.e. to prospecting

or mining], words which protect the miners'

right to perform acts related to mining,

into a restriction of the miners' choice

of mining methods to such as forestry

agents are willing to deem reasonable.

This judicial legislation reverses the

meaning of the mining law and places

Forest Service agents in position to

dictate the management of the miners’

prospecting, mining or prospecting

Operations, contrary to the intention

of Congress.

The Senate Committee rejected Mr.

Woozely's suggestion in his testimony

that restrictions be made on bulldozing

for doing assessment work or for pros-

pecting or exploring for an ore body

which had not yet been discovered. Com-

mittee on Interior and Insular Affairs

hearing on S-1713, S, Rept. No. 554,

84th Cong. lst Sess. 1955, pp. 65, 66

A-16.

House Report No. 730, U.S.Code,

Cong. & Admin. News, 1955 pp. 2482-3,

relating to the bill that was actually

enacted, explains the congressional

intention that Section 612(b) should

protect the miner from agency interference

with his ,rospecting and mining opera-

tions.

"With respect to the reserva-

tions in the United States to use

of the surface and surface re-

sources as set out in the two

preceding paragraphs, attention

is called to the proviso which

qualifies them:

"..-any use of the surface of such

mining claim by the United States,

its permittees, or licensees,

shall be such as not to endanger

or materially interfere with pros-

pecting, mining or processing

operations or uses reasonably

incident thereto. '

This language, carefully developed,

emphasizes the committee's insis-

tence that this legislation not

have the effect of modifying

long-standing essential rights

springing from location of a

mining claim. Dominant and pri-

mary use of the locations here-

after made as in the past would

be vested first in the locator;

the United States would be author-

ized to manage and dispose of the

surface resources, or to use the

surface for access to adjacent

lands, so long as and to the

extent that these activities do

not endanger or materially inter-

fere with mining or related

operations or activities on the

mining Claim.”{Emphasis added. ]

The only restriction created by

30 U.S.C. 612 is the restriction on

the locator's use of surface resources

not related to mining or related activ-

a

ities. House Report No. 730 continues:

"Subsection (c) of Section 4 of

the bill specifically imposes

restrictions on the locator's

use of surfacé resources not

related to mining or related

activities,

"It prohibits removal or use, by

the mining claimant, of timber or

other surface resources made sube-

ject by subsection (b) of section

4 to management and disposition

by the United States; again it will

be noted:

"Except to the extent required

for the mining claimant's pros-

pecting, mining or processing

operations and uses reasonably

incident thereto, or for the

construction of buildings or

structures in connection there-

with, or to provide clearance

for such operations or uses, or

to the extent authorized by the

United States * * *,'™

This legislative history shows that

Congress had no notion of setting up

Foestry as the arbiter of mining prac-

tices on located claims, To the contrary,

House Report at page 2479 shows that Con-

gress wished to prevent "continual inter-

ference by Federal agencies" which would

"hamber and discourage the development

of our mineral resources, development

which has been encouraged and promoted

by Federal mining law since shortly after

1800."

Congress carefully refrained from

giving federal agencies any authority to

dictate prospecting or mining methods by

the Surface Resources Act. The restric-

tions enacted were not upon methods of

operating mining claims but the Act re-

stricts the Government from interfering

with the miners’ operations.

The Government admitted as an agreed

fact in the pretrial order that petition-

ers “are lawfully in possession of said

Claim and have the right to explore,

develop and exploit the same..." R 25.

Thus the Governmeht concedes that the

mining claimants had discovered on their

claims on lands open to mineral entry

"valuable mineral deposits" within the

meaning of 30 USC 22, There was no chal-

lenge as to the quantity or quality of

the copper ore discovered. Validity of

the claims was conceded. R 25,

10

Validity of the claims having been

conceded, validity necessarily includes

the discovery of “valuable mineral de-

posits*, Here, petitioners were not

prospecting or exploring to search for

valuable mineral deposits which had not

been liscovered, nor were they doing

merely assessment work. Petitioners had

discovered a valuable deposit and were

engaged in the development and extrac-

tion of ore from this discovered deposit.

Richardson was extracting and stock piling

ore in some 155 barrels, Tr 157 (Grant).

See distinction between “exploration”

and "development" in Converse v, Udall,

399 F2d 616 (9th Cir, 1967). |

The claims in question have been

perfected. They are property in the

highest sense of the term, Locators’

rights are constitutionally protected

property, and the locator may not be

deprived of his claim without just com-

pensation being made. Wilbur v. United

States ex rel. Krushnic,280 U.S. 306

(1930); United States v, North American

Trans ortation and Trading Company, 253

U.S. 330 (1920). For the nature of

mining claims and the rights conferred

upon locators under the mining law, see

discussion in Silver Bow Mining and

Milling Company v. Clark, 9 Pac, 570,

574, 6, quoted with approval in Mantle

Vv. Noyes, 9 Pac, 856 at 862, aff'd Noyes Noyes

v. Mantle, 127 U.S. 348 (1888). See

also Union Oil Co. v. Smith, 249 U.S, 337,

348, 349 (1919); Gwillim v. Donnellan,

115 0.8. 45, 49, SO. tises) .

- Dae cn we oe “

. eh hee

ll

This case is important to the

mining industry, for the decision below

interprets 30 U.S.C. 612 as giving power

to bureaucracy to close down all surface

mining and as creating liability for the

miners. The decision makes miners liable

to pay the hureaucracy's cost of filling

up their mines if miners blast and bull-

doze the ground. The decision grants to

the bureaucracy power to shut down all

the open pit copper mines of the nation,

all of which mine by bulldozing and

blasting. Surface or open pit mining

accounts for 83% of the copper and 86% of

all ores mined in the United States in

1968, Mineral Facts and Problems,

published by the Bureau of Mines, U.S.

Pt Sata of the Interior, 1970 ed. p.

38,

The Opinions below disregard the fact

that in 1973 the Forest Service had no

authority to decide whether defendants'

methods of working their claims were or

were not suitable. The decisions read

into the 1955 Act the prohibition of

undue and unnecessary degradation of the

aesthetic and scenic values of the en-

vironment which Congress did not enact

until 1976, long after this case arose.

The Act creating the national forest

system, the Organic Administration Act

of 1897, specifically provides that

nothing in the act shall interfere with

the operation of the mining laws:

"{Any] mineral lands in any national

forest...subject to entry under the

existing mining laws of the United

States and the rules and regulations

12

applying thereto, shall continue

to be subject to such location and

entry, notwithstanding any provis-

ions contained in Sections 473-482

and 551 of this [Act]." 16 U.S.C.

§482 (1970)] (emphasis added.)

The Opinion below is in error when

it states that "Since 1897 the Secretary

of Agriculture has had authority under sec-

tions 478 and 551 of Title 16 to promul-

gate regulations concerning the methods

of prospecting and mining in national

forests." The Opinion misreads the 1897

Act. Title 16, §551 relates to preserva-

tion of the forests against destruction

by fire or unauthorized logging. §478

does not say that the Secretary of Agri-

culture may regulate mining methods; it

protects the continuing right of miners

to enter the national forests. If Con-

gress had intended then for the Secretary

of Agriculture to have authority to regu-

late and prescribe the mining methods to

be used for developing mineral resources,

Congress would have said so.

The Opinion views this case as an

occupancy trespass case where mining

claims have been used for purposes other

than mining, such as operating a saloon

in United States v. Rizinelli, 182 Fed

675 (D. Idaho 1910), cutting and exporting

timber in Teller v. United States, 113 Fed

273 (8th Cir. 1901), using a mining claim

for a residence, in United States v.

Nogueira, 403 F2d 816 (9th Cir. 1968),

grazing cattle in United States v. Etche-

verry,230 F2d 193 (10th Cir. 1956), tak-

ing a nonelocatable mineral in United States

v. Toole, 224 F Supp 440 (D. Mont. 1963),

or closing access to multiple users in

Mle 6 A= ei als as End a

woe |e CTREOR Mk

13

United States v. Curtis-Nevada Mines,

Inc., 415 F Supp 1383 (E.D. Cal. 1976).

Petitioners could not have been

trespassers, for the Government stipu-

lated that they were lawfully in posses-

sion of their claims and had the right to

explore, develop and exploit them. R25,

The only use made of the claims by peti-

tioners was to conduct the mining author-

ized by the mining law. They did not

convert or take anything to which they

were not entitled,

The 9th Circuit ignored the issue

made of the impropriety of the award to

Forestry of a money judgment requiring

petitioners to pay for filling in their

mine workings, which would prevent fur-

ther extraction of ore, After the trial,

Forestry personnel submitted to the trial

court its estimate of $2,263.13 (R 58-A)

to fill up petitioner's trench and mine

shaft in Area B. In this estimate,

Forestry included 15% profit for Forestry

and 30% for overhead. Petitioners were

not granted a hearing on this post-trial

issue, and there was no evidence of

reasonableness of these charges to sup-

port the money judgment of $2,263.13

entered by the District Court and tacitly

upheld by the 9th Circuit.

Forestry is a statutory administra-

tive agency and is governed strictly by

the statute from which it derives its

existence. Mr. Justice Douglas has made

clear the importance of strict require-

ment for administrative action. He said

in New York v. U.S. I. C.C. et al., 342

U.S. 882:

14

"Unless we make the requirements

for administrative action strict

and demanding, expertise, the

strength of modern government,

can become a monster which rules

with no practical limits on its

discretion. Absolute discretion,

like corruption, marks the begin-

ning of the end of liberty."

Senator Hruska, the ranking member on

the Senate Judiciary Committee, and for-

mer Chairman of the Subcommittee on Ad-

ministrative Practice and Procedure,

said on the floor of the Senate, Febru-

ary 19, 1974 : (Congressional Record

Senate 1911):

*Power alters the prespective of

the persons who wield it, and par-

ticularly where agencies administer

large areas of public resources,

there is a tendency to create and

enlarge a Federal empire which is

inside the 50 States but really

independent of them,

"The temptation to consolidate that

empire by dispossessing citizens of

property rights lawfully acquired

under acts of Congress is a strong

one. To a zealous bureaucrat, the

project may appear a righteous

crusade, while the citizen screams

"Confiscation!*® The task of pre-

serving our kind of country, one

where a citizen's constitutional

rights are a reality, so that it

will not turn into a bureaucracy

where those rights have no meaning,

calls for the courts to check and

correct administrative abuse of

power,"

15

In Ernst & Ernst v. Hochfelder,

425 U.S. 185 (1976), the Supreme Court

said at page 213:

"The rulemaking power granted to an

administrative agency charged with

the administration of a federal

statute is not the power to make

law. Rather it is “the power to

adopt regulations to carry into

effect the will of Congress as

expressed by the statute." ' quot-

ing Manhattan General Equipment Co.

v.Commissioner, 297 U.S. 129, 134

(1936). Thus despite the broad

view of the Rule advanced by the

Commission in this case, its scope

cannot exceed the power granted to

the Commission by Congress under

§10 (b)."

In Ernst & Ernst, an agency was checked

by this Court in its efforts to enlarge

the effect of the statute by administrative

interpretation. Similarly, this Court

should check Forestry's attempt here to

expand its power beyond that intended by

Congress.

Chief Justice Holmes said concerning

constitutionally protected vested rights:

"When this seemingly absolute protection

is found to be qualified by the police

power, the natural tendency of human

nature is to extend the qualification

more and more until at last private prop-

erty disappears." Pennsylvania Coal Co.

v. Mahon, 260 U.S. 393.

Since World War II, copper has gone

up in price from 14 cents a pound to over

$l a pound. Overregulation causes short-

ages of supplies. It destroys economic

freedom. William E. Simon, economist

and former Secretary of the Treasury of

the United States, "A Time for Truth",

endorsed by Nobel prize winning econo-

mists Milton Freeman and F, A. Hayck,

McGraw Hill, New York 1978.

There is little good in protecting

the environment for the sake of a society

which fails to insist on fair treatment

for its citizens.

WHEREFORE, your petitioners pray

that this Honorable Court grant their

petition for writ of certiorari, con-

sider their case, and reverse the in-

junction and money judgement affirmed

below.

espectfully submitted,

7

William B, Murray

Attorney for Appellants

1610 Standard Plaza

Portland, Oregon 97204

Telephone: (503) 226-3819

INDEX TO APPENDIX

Page

Order denying Petition for

Rehearing, U.S. Court of

Appeals July 9, 1979 A-1l

Opinion of Court of Appeals

May 1l, 1979 A-2

30 U.S.C. §612 A-12

46 U.S.C, §551 A-14

16 U.S.C. §478 A-15

43 C.F.R. §3712.1 A-15

Testimony, Committee on Interior

and Insular Affairs hearing on

S-1713, S. Rept. No. 554, 84th

Congress, lst Session, 1955,

Pages 65, 66 A-16

U.S. District Court for Oregon

Findings of Fact and Conclusions

of Law March 7, 1977 Opinion A-19

U.S. District Court for Oregon

Final Judgment and Decree

May 25, 1977 A-36

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, ) No. 77-2580

Vv. ) ORDER

y---=-

NED N. RICHARDSON and poRoTHY ) [July 9, 1979]

M. RICHARDSON, husband and )

wife, )

Defendants~-Appellants. )

Before: WRIGHT and GOODWIN, Circuit

Judges and THOMPSON, District

Judge.

The panel as constituted in the above

case has voted to deny the petition for

rehearing. The circuit judges have voted

to reject the suggestion for rehearing en

banc.

The full court has been advised of

the suggestion for an en banc hearing,

and no judge of the court has requested

a vote on it. Fed. R. App. P. 35(b).

The petition for rehearing is denied

and the suggestion for a rehearing en banc

is rejected.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No.

Plaintiff-Appellee, 77-2580

vs. OPINION

NED N. RICHARDSON and DOROTHY

M. RICHARDSON, husband and

wife,

Defendants~-Appellants,

meee ee eee ee ee ee

[May ll, 1979]

Appeal from the United States

District Court for the District

of Oregon

Before: WRIGHT and GOODWIN, Circuit

Judges, and THOMPSON *, Dis-

trict Judge

THOMPSON, District Judge:

Some form of poetic justice may lie

in the fact that this action arose in the

Gifford Pinchot National Forest in the

State of Washington, named for a man who

was in the vanguard of conservationists

and environmentalists.

In 1970 the appellants, Ned and

Dorothy Richardson, filed notices of lo-

cation for six mining claims in the Wind

*The Honorable Bruce R. Thompson,

United States District Judge, District

of Nevada, sitting by designation.

River Ranger District. The claims were

Situated at the confluence of Slide Creek

and the East Fork of the Lewis River, an

area reforested after a destructive fire

some forty years ago. The area was

heavily used by campers and fishermen.

Appellants explored and prospected

their claims by use of heavy equipment

(a bulldozer and a backhoe) and by blast-

ing. Surface disturbance by bulldozing

of three separate areas affected approx-

imately 1.6 acres. Two trenches were

excavated, one approximately 75 feet by

65 feet by twelve feet deep; the other

approximately 300 feet by 100 feet by 15

feet deep. From the early days of these

activities forest rangers remonstrated

with the Richardsons respecting the ex-

cessive and unnecessary surface and en-

vironmental damage caused by their

methods of prospecting and suggested

core drilling as an alternative, but the

suggestions were not heeded. Ultimately

this action was filed to enjoin further

blasting and bulldozing and to restore

surface damage.

To place this case in proper per-

spective it should be said that these

were genuine prospecting activities con-

ducted at considerable expense (some

$40,000) for the purpose of developing

amine. The Richardsons used the methods

they deemed best for the purpose of re-

moving the overburden and uncovering the

ore body. Inasmuch as the prospect was,

at best, a low grade copper deposit, it

was essential to demonstrate the exist-

ence of a large body of ore for commer-

cially Feasible mining. The report of

the government's own expert geologist

states: "The prospect does justify

continued exploration which should be

designed to indicate the presence of

commercial grade ore..." The report

also stated:

"The goal of a successful explor-

ation effort on a deposit such as

this will be to delineate suffi-

ciently large tonnages of 0.6 -

0.8% copper equivalent rock which

would be amenable to open pit or

block caving mining methods,

Using the above grades as one

economic parameter, a minimum size

deposit of 30,000,000 tons would

justify probable production at

5,000 to 7,500 TPD. This size

deposit would represent a volume

block of 330,000,000 cu, ft. or

1,000' x 1,000* x 330' basic di-

mensions. The only acceptable

initial approach to exploration

of this type deposit would be core

drilling after performance of all

applicable surface geotechnical

Surveys. Small area excavations

are virtually meaningless for this

type of problem. Furthermore, the

large tonnage minimum production

rate requirement for ore of con-

centrator quality indicates that

small-scale production is totally

economically unacceptable. The

ASARCO smelter in Tacoma would not

accept the low-grade raw ore; only

clean contract-stipulated concen-

trates and/or adequate flux to meet

their environmental quality stand-

ards,"

Following a court trial during which

the district judge viewed the premises,

the Court entered its decree and found:

"1. This Court has jurisdiction

by virtue of 28 U.S.C. §1345,

"2. Stripping away overburden to

expose rockbed, particularly in the

initial exploration stages, is not

proper mining procedure, under the

circumstances shown by the evidence

in this case,

"3. Defendants" utitization of

blasting and bulldozing was destruc-

tive to the surface resources and

consequently not a reasonable method

of exposing subsurface deposits

under the circumstances shown by

the evidence in this case,

"4, Under the circumstances shown

by the evidence in this case, the

Forest Service may require the lo-

cator or an unpatented mining claim

on national forest lands to use non-

destructive methods of prosvecting.

"5. Defendants and their succes-

sors and agents, servants, employees

and attorneys, and those persons in

active concert or participation with

them are permanently enjoined from

conducting prospecting operations by

means of bulldozing or blasting on

the following mining claims located

in Sections 7, 8, 15, 17, 18 and 20,

Township 4 North, Range 5 E.W.M., in

Skamania County, Washington: Half

Penny, Silver Lode No, 1, Big Twinkle

Mine, Richardson Lodge Claim, Rich-

ardson Little Twinkle Mine, and Lucky

Strike.

"Plaintiff shall have judgment

against defendants Ned N. Richardson

and Dorothy M. Richardson jointly and

severally in the amount of $2,263.13

plus its costs and disbursements here-

sa.”

This case involves the interrela-

tionship of federal statutes concerning

the national forests and mining on pub-

lic lands, THEge are 30 U.S.C. S26,

30 U.S.C. §612 1/ 1g U.S.C. §5551,=

and 16 U.S.C. §478.3/ Since 1897 the

Secretary of Agriculture has had author-

ity under sections 478 and 551 of Title

16 to promulgate regulations concerning

the methods of prospecting and mining

in national forests; yet it was not

until 1974 that such regulations were

adopted. (35 C,R.T. Part 252). No

such regulations were in effect before

this lawsuit was commenced in November,

1973 and the forest rangers relied on

certain directives and guidelines issued

by the department and upon 30 U.S.C §612

for their authority to restrain the un-

warranted surface destruction of the

national forest.

The basic mining law of May 12,

1872 (17 Stat. 91) granted a locator

broad possessory rights. "The locators

of all mining locations...shall have the

exclusive right of possession and enjoy-

ment of all the surface included within

the lines of their locations..." (30 U.

S.C. §26). Before 1955 this broad grant

was consistently recognized so long as

the uses were incident to prospecting

and mining, In United States v. Rizzi-

nelli, 182 Fed 675 (D. Idaho 1910), the

establishment and maintenance of saloons

on an unpatented mining claim in the

forest reserve was held to he an indict-

able offense. The court said:

"The paramount ownership being

in the government, and it also

having a reversionary interest in

the possessory right of the locator,

clearly has a valuable estate which

it is entitled to protect against

waste and unlawful use."

Also, in Teller v. United States,

113 Fed. 273 (8th Cir. 1901), the defend-

ant was convicted of unlawfully cutting

and exporting timber from public lands

of the United States, including from an

unpatented mining claim. Upholding the

conviction, the Court of Appeals said,

in part:

"While his location so far segre-

gated and withdrew the land from

the public domain that no rival

claimant could successfully initi-

ate any right to it until his loca-

tion was avoided and his entry was

canceled (James v. Iron Co,, 46 C.C.

A. 476, 107 Fed 597, 603, and cases

there cited; Hatman v. Watten, 22 C.

C.A. 30, 76 Fed 157, 160; Pacific

Ry. Co. v. Dunmeyer, 113 U.S. 629,

> Sup. Ct. 3566, 28 L. Ed. 1122), it

gave him nothing but ' the right of

present and exclusive possession for

the purpose of mining. It did not

divest the legal title of the United

States, or impair its right to pro-

tect the iand and its product by

either civil or criminal proceedings,

from trespass or waste."

The foregoing statement was quoted with

approval by our court in United States v.

Nogueira, 403 F2d 816 (9th Cir. 1968)

where we upheld the right of the United

States to seek to enjoin the use of an

unpatented mining claim for a residence

wholly unrelated to any mining activity

whatsoever. Similarly, in United States

v. Etcheverry,230 F2d 193 (10th Cir. 1956),

the owner of unpatented mining claims was

held not entitled to lease the claims for

grazing of livestock - a use unrelated

to mining. See also: United States v.

Schultz, 31 F2d 763 (N.D.Cal. 1929).

It perhaps is not surprising that

the reported cases to this date concern-

ing the surface use of unpatented mining

locations have treated only the issue

of uses unrelated to prospecting and

mining. This is true even of the pre-

cedents since 1955, after the passage of

the Surface Resources Act of 1955, 69

Stat. 367, and particularly 30 U.S.C.

§612 (supra). Converse v. Udall, 262 F.

Supp. 583 (D. Ore. 1966), aff'd 399 F2ada

616 (9th Cir. 1967), cert. den. 393 U.S.

1025 (1969), arose out of an administra-

tive action by the Secretary against lo-

cators to establish control of the sur-

face resources (timber) on unpatented

mining claims. In United States v.

Toole,224 F. Supp. 440 (D. Mont. 1963)

the United States brought an action to

cancel mining locations and obtain dam-

ages for trespass. The court held that

a deposit of peaty material or peat

moss was not a valuable mineral locat- t

able under the mining laws and awarded

damages under 30 U.S.C.§612 to the United ’

States for the material removed. The

case of United States v. Curtis-Nevada

Mines, Inc., 415 F. Supp. 1373 (E. D.

Cal. 1976) involved the surface use of

unpatented mining claims located both

in the national forest under the juris-

diction of the Department of Agriculture,

and on public lands under the jurisdic-

tion of the Department of the Interior.

The court required the defendant to file

an operations plan for the unpatented

Claims located in the national forest

pursuant to 36 C.R.R. Part 252, but not

for the claims on lands under the juris-

diction of the Bureau of Land Management

which had promulgated no similar regula-

tion. The court also enjoined the de-

fendant from prohibiting or interfereing

with public use of the surface of the

claim for hunting, hiking, camping and

recreational activities "so long as

there is no interference with ongoing

Mining operations,”

The Surface Resources Act of July

23, 1955, 69 Stat. 367, 30 U.S.C. §611

et seq. (Footnote 1), must be relied

upon to uphold the decree of the District

Court in the present case, The year fol-

lowing its enactment, the Secretary of

the Interior promulgated regulations

(21 F.R. §7619, 43 C.F.R, §185.120 et

seq.). Section 185.122 of the regula-

tions (now renumbered and found as 43

Coksmas Sataas dk) = 4/ sets forth the Secre-

tary's interpretation of the statute in

relation to the surface use of unpatented

mining claims on public lands under the

jurisdiction of the BLM. A fair read-

ing of this regulation must lead to the

conclusions that insofar as BLM lands

are involved, any activity is permissible

which is directly related to mining or

prospecting,

A-10

These regulations do not, however

apply to national forest lands under

the jurisdiction of the Secretary of

Agriculture and in the instant case we

look to Title 30 U.S.C. §612 unaided

and unimpeded by administrative regula-

tion. The court observed in Curtis-Nev-

ada Mines, Inc., (supra) that the statute

is ambiguous and we must look to legis-

lative history for aid in interpretation.

Testimony taken in hearings before

the Committee on Interior and Insular

Affairs on §1713, a bill whose language

was identical to that adopted as 30 U,

S.C. §612, indicates that the Congress

was aware of _ the vroblem of excessive

bulldozing. 2

Further, in commenting on section

4(c) of 69 Stat. 368 (30 U.S.C. §612),

the House Committee considering the bill

stated:

"This language, read together

with the entire section, emphasizes

recognition of the dominant right

to use in the locator but strikes

a balance in the view of the com-

mittee, between competing surface

uses and surface versus subsurface

uses."

Section 612 speaks of “prospecting”,

"Mining" and uses "reasonably incident

thereto." It speaks of “the right of

the United States to manage and dispose

of the vegetative resources thereof and

to manage other surface resources thereof."

It limits such control so “as not to

endanger or materially interfere with

prospecting, mining... or uses reasonably

A-ll

incident thereto.” It also in subsec-

tion (c) precludes the exploitation of

surface resources by a locator "except

to the extent required for... prospect-

ing, mining...and uses reasonably inci-

dent thereto. (Emphasis suppliedO. Bear-

ing in mind that this admittedly ambigu-

ous restatement of the rights of mining

locators was intended to supersede and

modify the pre-existing recognition of

broad rights under 30 U.S.C,.§26 (dis-

cussed supra), we think the words we

have underlined in the quoted extracts

from the statute are the ones that point

the direction of the changes intended,

The findings of fact by the District

Court implement a correct interpreta-

tion of the statute, are supported by

the evidence, and cannot be faulted

under the standard prescribed by Rule

52(a) Fed. R. Civ. P.

Congressional policy as expressed

in the National Environmental Policy

Act of 1969 is aigo consistent with

this dispositon, —

In summary, we suggest that each

case of this kind is controlled by the

facts of each particular case, The

District Court in its findings emphas-

ized and reiterated the "circumstances

shown by the evidence in.this case,”

Here the locators did not have a mine,

they had a prospect, they were still

exploring, Their methods of explora-

tion were unnecessary and were unreas-

onably destructive of surface resources

and damaging to the environment. They

were warned and persisted, The judg-

ment of the District Court is affirmed.

A-12

FOOTNOTES

1/ 30 U.S.C. §612: Unpatented mining

claims,

(a) Prospecting, mining or proces-

sing operations,

Any mining claim hereafter located

under the mining laws of the United

States shall not be used, prior to

issuance of patent therefor, for any

purposes other than prospecting,

mining or processing operations and

uses reasonably incident thereto.

(b) Reservations in the United

States to use of the surface and surface

resources

Rights under any mining claim here-

after located under the mining laws of

the United States shall be subject prior

to issuance of patent therefor, to the

right of the United States to manage

and dispose of the vegetative surface

resources thereof and to manage other

surface resources thereof (except min-

eral deposits subject to location under

the mining laws of the United States},

Any such mining claim shall also be

subject, prior to issuance of patent

therefor, to the right of the United

States, its permittees, and licensees,

to use so much of the surface thereof

as may be necessary for such purposes

or for access to adjacent land; Pro-

vided, however, That any use of the

surface of any such mining claim by the

United States, its permittees or licen-

sees, shall be such as not to endanger

or materially interfere with prospecting,

mining or processing operations or uses

reasonably incident thereto: Provided

further, That if at any time the loca-

tor requires more timber for his mining

operations than is available to him

A-13

from the claim after disposition of

timber therefrom by the United States,

subsequent to the location of the claim,

he shall be entitled, free of charge,

to be supplied with timber for such

requirements from the nearest timber

administered by the disposing agency

which is ready for harvesting under

the rules and regulations of that agency

and which is substantially equivalent in

kind and quantity to the timber esti-

mated by the disposing agency to have

been disposed of from the claim: Pro-

vided further, That nothing in this

subchapter and sections 601 and 603 of

this title shall be construed as affect-

ing or intended to affect or in any way

interfere with or modify the laws of

the States which lie wholly or in part

westward of the ninety-eighth meridian

relating to the ownership, control,

appropriation, use and distribution

of ground or surface waters within any

unpatented mining claim,

(c) Severance or removal of timber

Except to the extent required for

the mining claimant's prospectiny, min-

ing or processing operations and uses

reasonably incident thereto, or for the

construction of buildings or structures

in connection therewith, or to provide

clearance for such operations or uses,

or to the extent authorized by the

United States, no claimant of any mining

claim hereafter located under the mining

laws of the United States shall, prior to

issuance of patent therefor, sever, re-

move, or use any vegetative or other

surface resources thereof which are sub-

ject to management or disposition by the

A-14

United States under subsection (b) of

this section. Any severance or removal

of timber which is permitted under the

exceptions of the preceding sentence,

other than severance or removal to pro-

vide clearance, shall be in accordance

with sound principles of forest manage-

ment.

2/16 : U.S.C. §551: Protection of

national forests; rules and

regulations

The Secretary of Agriculture shall

make provisions for the protection against

destruction by fire and depredations upon

the public forests and national forests

which may have been set aside or which

may be hereafter set aside under the

provisions of section 471 of this title,

and which may be continued; and he may

make such rules and regulations and es-

tablish such service as will insure the

objects of such reservations, namely to

regulate their occupancy and use and to

preserve the forests thereon from de-

struction; and any violation of the pro-

visions of this section, sections 473 to

478 and 479 to 482 of this title or such

rules and regulations shall be punished

by a fine of not more than $500 or im-

prisonment for not more than six months,

or both. Any person charged with the

violation of such rules and regulations

May be tried and sentenced by any United

States magistrate specially designated

for that purpose by the court by which

he was appointed, in the same manner

and subject to the same conditions as

provided for in section 3401 (b) to (e)

of Title 18,

3/ 16 U.S. C. §478: Egress or ingress

of actual settlers; prospecting

Nothing in sections 473 to 478, 479

to 482 and 551 of this title shall be

construed as prohibiting the egress or

ingress of actual settlers residing

within the boundaries of national for-

ests, or from crossing the same to and

from their property or homes; and such

wagon roads and other improvements may

be constructed thereon as may be neces-

sary to reach their homes and to utilize

their property under such rules and regu-

lations as may be prescribed by the Secre-

tary of Agriculture. Nor shall anything

in such sections prohibit any person from

entering upon such national forests for

all proper and lawful purposes, including

that of prospecting, locating and devel-

oping the mineral resources thereof.

Such persons must comply with the

rules and regulations covering such

national forests.

4/ 43 C.F .R. $3712.11

'(b) The locator of an unpatented

mining claim subject to the act is lim-

ited in his use of the claim to those

uses specified in the act, namely, pros-

pecting, mining or processing operations

and uses reasonably incident thereto.

He is forbidden to use it for any other

purpose such, for example, as for filling

stations, curio shops, cafes, tourist or

fishing and hunting camps. Except as

such interference may result from uses

permitted under the act, the locator of

an unpatented mining claim subject to

the act may not interfere with the right

of the United States to manage the vege-

tative and other surface resources of the

A-16

land, or use it so as to block access

to or egress from adjacent public land,

or use Federal timber for purposes other

than those permitted under the act, or

block access to water needed in grazing

use of the national forests or other

public lands, or block access to recrea-

tional areas, or prevent agents of the

Federal Government from crossing the

locator's claim in order to reach adga-

cent land for purposes of managing wild-

game habitat or improving fishing streams

so as tothwart the public harvest and

proper management of fish and game re-

sources on the public lands generally,

both on located and on adjacent lands,

5/ Testimony taken in hearings before

the Committee on Interior and Insu-

lar Affairs on S 1713:

MR. WOOZLEY. Under present uses, I

feel very definitely that some people

are taking advantage of using the sur-

face rights for purposes not incident

actually to mining,

SENATOR MILLIKIN. Give me examples,

MR. WOOZLEY,. They are stripping

the land in certain areas much more than

is necessary for their actual mining

operations, destroying the topsoil and

allowing the wind to blow the land around,

i s e e | e ‘ e e ® « e

SENATOR ANDERSON... We are having

an epidemic of bad erosion practices by

taking the bulldozers and just promiscu-

ously running them across the landscape,

ee Oe eS ae eee See Dee oe ee ee a

ee ee

oe em ES tart. - 8 a

A-17

SENATOR MALONE. Do you mean, Mr.

Woozley, that there is a great percent-

age of the area of these lands that is

being bulldozed in that connection?

MR. WOOZLEY. There is sufficient,

Senator, when you dig a hole on each

claim or use a bulldozer on each claim,

that it is setting up a terrific eros-

ion problem. The Federal Government

and the people using the range are

spending money to build and vegetate

these ranges, and, on the other hand,

they are being abused.

SENATOR MALONE. Would you stop

all this?

MR, WOOZLEY. We would have a much

better chance of stopping that under this

act than uder the existing laws.

SENATOR MALONE. I ask you, would

you attempt to stop it? Do you want to

stop it? |

MR. WOOZLEY. We would stop the

uses which are not necessary to explora-

tion.

SENATOR MALONE. What is he using

the bulldozer for? Is it not to find

out what is underneath?

MR. WOOZLEY. That is very question-

able. It is just to do his assessment

work, his necessary work. I do not think

it is doing anything to determine what

minerals are there, Senator,

SENATOR MALONE, Are we not then

amending the wrong law?

MR. WOOZLEY. No. I think this law

would do that. (Testimony of Mr.

Woozley, Director of the Bureau of Land

Management. page 65).

6/ The National Environmental Policy

Act of 1969 (NEPA) also indicated that

the Congress intended the various agen-

cies of government to take a greater

interest in environmental problems.

NEPA provides in part:

"The Congress authorizes and

directs that to the fullest extent

possible (1) the policies, regula-

tions and public laws of the United

States shall be interpreted and

administered in accordance with the

policy set forth in this Act,.."

43 U.S.C. §4321,

These policies as set forth in 42 U,S.

C. §4321 et seq. include a duty to;

"(1) fulfill the responsibilities

of each generation as trustee of

the environment for succeeding

generations.

"(2) assure for all Americans

safe, healthful, productive, and

aesthetically and culturally

pleasing surroundings,

"(3) attain the widest range of

beneficial uses of the environment

without degradation risk to health

or safety or other undesirable and

unintended consequences,,,.

"The Congress recognizes that

each person should enjoy a health-

ful environment and each person has

oe i RNS a eC

A-19

a responsibility to contribute to

the preservation and enhancement of

the environment.”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Civil No,

Plaintiff, ,

73-895

NED N, RICHARDSON and

)

)

)

)

vs. )

)

FINDINGS OF

)

DOROTHY M.,. RICHARDSON , FACT AND

husband and wife, CONCLUSIONS

) OF LAW

Defendants. ) [March 7, 1977]

This case came on for trial on March

31, 1975 before the court without a jury,

the Honorable James M. Burns presiding.

The issues were duly tried and the court

rendered its oral decision

IT IS ORDERED AND ADJUDGED that the

court's oral ruling, which has been tran-

scribed and is attached hereto, is incor-

porated by reference herein and shall con-.

stitute findings of fact and conclusions

of law pursuant to Rule 52 FRCP.

Dated this 7 day of March, 1977.

/s/ James M. Burns

United States District

Judge

COURT's OPINIONS

BEFORE:

The Honorable James M. Burns, United

States District Court Judge.

APPEARANCES:

Mr. Jack Collins, Assistant United

States Attorney, representing the

Government;

Mr. William B. Murray, Attorney, repre-

senting the defendants.

THE COURT: U.S. v. Richardson.

In this case, the Government is seek-

ing to enjoin the defendants from pros-

pecting on Forest Service land in a manner

which the Government claims is unreason-

able and which it claims has resulted in

destriction of various environmental and

scenic values on the lands affected,

The validity of the mining claim it-

self is not at issue. Specifically, the

Government seeks relief by way of an in-

junction forbidding defendants from blast-

ing, bulldozing, and otherwise acting in

an unreasonable manner.

The Government also requests an in-

junction requiring defendants to restore

certain of the areas to their previous

condition. And the Government in addition

asks for an award of damages as well,

based upon its claim that it would suffer

monetary damages by virtue of timber re-

moval.

The case was tried to the Court over

the defendants' objection. Defendants

contending that they were entitled to a

jury trial.

The testimony was taken and it was

agreed by all concerned that a view of

the premises might be helpful. And in

this regard I should state that I am

going to omit largely a description of

the specific components of the claim as

far as location with respect to trails,

roads and geographical points, And I

am going to omit a historical descrip-

tion of the sequence of the events be-

cause these are not really in dispute.

The times when the claims are commenced

and the like and they are set forth ra-

ther clearly in the exhibits; largely

the exhibits of the memos by the Forest

Service personnel and I think it's un-

necessary to extend the length of this

oral opinion for that purpose.

The view was scheduled for early

May of 1975. A group of us traveled to

the site of the claim. In the group

there was Mr. Moore of the Forest Ser-

vice, Mr. Collins of the U.S. Attorney's

Office who was filling in for Mr. Ham-

mersly who tried the case, Mr. Mike

Moran, who had appeared earlier as a

witness, geological expert witness for

the defendants, and Mr. Carl Crain, then

a law student who was acting as an in-

tern and clerk for me,

At the site we met Dr. Grant who was

plaintiff's geologist that testified at

the trial.

The view occupied about three quar-

ters of an hour during which time all of

us. inspected each of the four areas dis-

cussed at the trial, A, B, C, D. In ad-

dition, certain conversations were had

with both Dr. Grant and Mr. Moran con-

cerning various objects and conditions

pointed out at the site of the mining

claim.

Mr. Murray, who tried the case for

the defendants, asked to be excused from

attendance at this view because of a con-

flict in his schedule. But I wish to

make it clear that insofar as there was

any questioning which went on, it was sim-

ply questions asked of Mr. Moran and Dr.

Grant as to specific areas and locations

and the like. There was no testimony

taken in the sense that is normally thought

of.

As to Area D where the claim was

made that damage occurred by virtue of

defendant drilling, very little needs to

be given to this. This was a site at the

westernly most portion of the premises

where minimal damage occurred in the bank

at the site opposite of the east fork of

the Lewis River. The bank abuts the road

as the road immediately abuts the river.

Some material slid down onto the road and

some material was moved over on the river

side of the road. Any of the material

that had come in contact with the stream

had, of course, long since washed away.

Any relief, if any, to which the Govern-

ment would be entitled in this area would

simply be any further drilling activity

at that particular site should occur only

after appropriate consultation with the

Forest Service so as to insure against

future damage to the road itself or to

any fill material spilling over into the

river.

It is apparent that given the superb

cleanliness of the stream, whatever inter-

hehe ie ~~ eet ee wd

Ne asada La Sa. ame al aes

OO Dt toe ete bk Pete, ee ee 2

ference there was at the time has long

Since vanished and the damage was mini-

mal and short-lasting.

Area A, the site nearest Slide Creek

and adjacent to the cabin is not present-

ly being worked and need not detain us

further.

Area C and B are according to the

view the serious incursions upon the

landscape. Each reveals substantial re-

moval of vegetation or top soil. The

top soil being minimal in the area be-

cause of the underlying geography.

Site B consists of an area about

seven-tenths of an acre near the bank of

the east fork of the Lewis River. It con-

tains two holes drilled approximately

twenty feet deep near the center of the

excavation. The general excavation re-

veals as much as five, six feet of the

ground was bulldozed off. It is a ugly

scar on the landscape indeed.

Area C is a bullcozing area near an

old Forest Service road that travels gen-

erally in a northerly direction on the

east side of Slide Creek. A smaller area

is involved here. But the huge and ugly

gash left near the edge of the road ex-

tended perhaps one hundred feet in length

and as much as eight to ten feet in depth

and about twelve feet in width. I con-

clude that the method used in Areas B and

C are grossly inappropriate as the way to

and in which to pursue otherwise a valid

prospective claim.

I am persuaded by the Government's

evidence that core drilling would be much

more appropriate and, indeed, would be

A-24 |

more efficient and less expensive. It

would result in minimal disruption of

the forest land area and keep that loca-

tion as attractive as it is to those who

visit our forest land for scenic, environ-

mental and esthetic enjoyment.

The Government claimed destruction

of timber at Area C by virtue of spilling

some of the excavation material over on

the bank and burying some tree trunks

with as much as perhaps three, four feet

of fill dirt. I conclude, based largely

on my view of the premises, that the dam-

age to trees in this area which the Gov-

ernment assets has not been proved--simi-

larly with respect to timber which has

been removed from Area B, the Government

introduced evidence from a timber spe-

cialist purporting to establish a dollar

value of timber removed,

I conclude that the Government has

failed needed burden of proof in this

respect and hence its claim for money

damages for removal of timber has not

been met.

Throughout their numerous discus-

sions with the defendants, Forest Service

personnel advocated the use of core drill-

ing or some other method of prospecting :

which would reveal the same or superior

information while causing less destruc-

tion to other resources and the esthetic

appearances of the area. During the past ;

several decades, alternatives to blasting

and bulldozing, such as core drilling,

have enjoyed the benefits of technologi-

cal advancement. It is now possible to

explore land containing large low grade

subsurface deposits without disturbing

the overlying soil or vegetation or with-

out disturbing all but a small part of

it. The use of something like a core

drill would have provided defendants

with more information in less time at

less expense than the environmentally

destructive methods which they were

using. These nondestructive methods of

prospecting have so completely outmoded

defendants’ methods, used by the defend-

ant, that I find and conclude it is no

longer standard procedure to strip away

the overburden to expose the bed rock,

especially during the initial explora-

tion stage in which defendants were

engaged.

In light of modern environmental

concerns for proper surface drainage,

prevention of erosion, and the esthetic

appearance of our National Forest lands,

the removal of overburden in this de-

structive manner is grossly inappropriate.

Therefore, I find and conclude and hold

that defendants’ utilization of blasting

and bulldozing was unreasonable, direct-

ly in Areas C and B, was unreasonable

under the circumstances.

Having so concluded, I must now de-

termine whether the Forest Service has

the authority to regulate prospecting

methods within the National Forest. Since

this question tends to be, perhaps if not

a first impression almost a first impres-

Sion, it perhaps will be helpful to trace

the power that controls such activities

on public lands from its Constitutional

source.

The Constitution provides that Con-

gress shall have the power to dispose of

and make all needful rules and regula-

tions respecting the territory or other

A-26

property belonging to the United States.

In mentioning what I did a few minutes

ago, I intended to omit citations not

only to cases but the Constitutional pro-

visions as well. Though I mention that

is from Article IV, Sec. 3.

This grant of Constitutional author-

ity enables Congress to exercise unlimited

legislative power over the public domain

and to limit the disposition of that do-

main to a manner consistent with its use

of public policy. Alabama v. Texas,

United States v. City and County of San

Francisco. It also enables Congress to

control, in the same manner as any indi-

vidual proprietor, the use of public lands,

prevent the waste thereon of valuable pub-

lic resources, abate nuisances and exer-

cise all of the other property rights

which are normally afforded to private

individuals. Alabama v. Texas, Fred Light

v. United States, Camfield v. United States.

The needs of a young, rapidly expand-

ing country first prompted Congress to

exercise its power to dispose of natural

resources. The act of May 10, 1872, was

enacted to promote the development of the

mining resources of the United States by

encouraging private individuals to assume

the hazards of searching for and extract-

ing valuable minerals. United States Ex

Rel U.S. Borax Company v. Ickes, United

States v. Rizinelli. Except as otherwise

provided, 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 occupation and purchase under

regulations provided by law. 30 USC 22.

ee

ek eens DOE ne

Pa ee ee ee eee

mm secetek

‘a eat

At that time the United States en-

joyed a seemingly unlimited bounty of

natural resources and the destruction

of surface resources which accompanied

uncontrolled mining activity was a slight

burden to bear_in relation to the benefits

arising from continued national growth

and westward expansion. However, it soon

became apparent that our national resour-

ces were not unlimited and that steps

would have to be taken to preserve those

resources for future generations, Thus

the act of March 3rd 1891, authorized

the President of the United States to set

apart and reserve certain public lands

as National Forests.

The purpose of this act was to pre-

serve the remaining forests on public

lands from depredation and destruction

through complete administration and con-

trol by the Government.

Through the act of June 4, 1897,

Congress specifically defined the pur-

poses for which National Forests were to

be established under 16 USC 471. These

were the improvements and protection of

the forests within the boundaries of the

National Forests, the preservation of

favorable conditions for water flow, and

the maintenance of a continuous supply

of timber for the use of the people.

During the Twentieth Centure, the

United States continued to grow in popu-

lation although the geographical limits

of the lower forty-eight states had been

established. The urbanization of America

made forest lands increasingly important

for recreational activities.

Congress in response to the changing

needs of the country, enacted the Multi-

ple Use-Sustained Yield Act of 1960. [1955]

Through this act outdoor recreation and

the preservation of range, timber, water-

shed, wildlife and fish were added to the

purposes for which a National Forest

would be established.

Thus Congress, through the mining

laws, has exercised its power to dispose

of public property by encouraging the

development, by private individuals, of

mineral resources located on public

lands. On the other hand, it has also

exercised the power vis-a-vis public

property too by authorizing the reserva-

tion of National Forests for the purpose

of preserving the surface resources lo-

cated within their boundaries, Since

the development of mineral resources

usually or sometimes is not compatible

with the preservation of surface resour-

ces, one must explore the relationship

between the rights conveyed under the

mining laws and the restrictions imposed

on users of the National Forest. It is

clear that the entrance upon forest lands

for any legal purposes including pros-

pecting, locating and developing mineral

resources is not prohibited. 16 USC 478,

But, as previously noted, mineral deposits

in lands belonging to the United States

are only open to exploration and the

lands in which they are found to occupa-~

tion, to the extent that such activity is

not prohibited. 16 USC 22.

The location of a valid mining claim

bestows upon the locator the right to

present possession for the purpose of

prospecting and mining, but it does not

divest the legal title of the United States

or impair its right to protect the land

a er lng

A-29

from trespass or waste, U,S. v, Etche-

verry, United States v, Rizinelli, Teller

v. United States. “Those pedple who seek

to locate, prospect and develop mineral

resources on National Forest lands must

comply with the rules and regulations

covering the National Forest. 16 USC 478.

Before reaching the specific rules

and regulations which apply in this pres-

ent case, the Court should determine which

Governmental agency has the authority to

impose and enforce such rules and regula-

tions. In order to effectuate the pur-

poses behind reservation of public land

as National Forest, Congress, through

the Act of June 4, 1897, delegated to

the Secretary of the Interior the author-

ity to make rules and regulations. Sub-

sequently, Congress determined that the

Secretary of Agriculture could more ef-

fectively manage surface resources within

National Forests. Consequently, the Act

of February 1, 1905, this act transferred

to the Secretary of Agriculture the fore-

going authority along with that to exe-

cute all laws affecting public lands re-

served under the provisons of 471, ex-

cepting certain lands as mentioned. 16

USC 472.

As a result of this later act, the

Secretary of the Interior retained the

authority to regulate the location of the

mining claims, their nature and classes,

assessments and mineral patent applica-

tions while the protection of nonmineral

surface resources became the responsi-

bility of the Secretary of Agriculture.

This delegation of authority to the Secre-

tary of Agriculture is a significant one

and should be construed in a manner that

will insure protection of the National

A-30

Forests. United States v. Shannon.

Further, the valid location of a mining

claim does not, in itself, withdraw the

land embraced within the claim from the

jurisdiction of the Secretary of Agri-

culture. United States v. Rizinelli.

Therefore, the rules and regulations

issued by the Secretary of Agriculture

pursuant to 551 should be enforced by

the courts as long as they tend to pro-

tect National Forest lands and faith-

fully preserve the interests of the

people in those lands, As a part of the

Department of Agriculture, the Forest

Service may properly regulate the occu-

pancy and use of the National Forests.

In this case, the Court need not

be concerned with specific rules which

may have been promulgated by the Forest

Service because Congress, through the

Multiple Surface Use Act of 1955, has

taken action to define the respective

rights of a prospector and the Govern-

ment. This Court need only determine

whether defendants have violated that

statute. The Multiple Surface Use Act

of 1955 is found at 30 USC 612.

In construing that separate pro-

vision of 612, this Court should give

the statute, the most harmonious and

comprehensive meaning possible in light

of its legislative policy and purpose.

The purpose of this section was to limit

the use, or misuse, of surface resources

by mining claimants prior to the issu-

ance of a patent. Converse v. Udall.

A review of the legislative his-

tory of this section reveals a Congres-

sional recognition of the need for a

balancing between competing surface and

haae

subsurface demands. This balancing

process has become even more important

Since the passage of the National En-

vironmental Policy Act of 1969, 42 USC

4331(a) and following.

Congress further affirmatively de-

clared that each person has a responsi-

bility to contribute to the preservation

and enhancement of the environment. Sub-

section (c) 4331, To the fullest extent

possible, the policies, regulations and

public laws of the United States should

be interpreted in accordance with the

policies set forth in the National En-

vironmental Policy Act. Therefore, this

Court should avoid any decision which

would frustrate the objectives of 4331.

In any situation involving several

noncompatible and competing uses for a

given parcel of land, a determination

must be made regarding which of those

uses, or which combination of uses, would

result in the highest net social benefit.

Obviously, in order to ascertain the par-

cel's value as mineral producing land,

a certain amount of exploratory work

must be done to establish its mineral

content. Thus, an absolute prohibition

on prospecting in a given parcel would

require strong countervailing considera-

tions.

But, the instant case does not in-

volve such an absolute prohibition. De-

fendants were requested to use an alter-

natuve method of prospecting which would

have lessened their activities’ impact

on environment and surface resources while

producing superior information at a

lower cost.

This Court has determined that

defendants’ destruction and removal of

surface resources on the mining claim

far exceeds that which was required to

perform prospecting activites. Although

traditional cases involving the unlawful

use of mining claim differ from the

present one in that they were concerned

with the use of National Forest for ob-

viously illegal activities such as oper-

ating a saloon in the Rizzinelli case,

grazing cattle in the Etcheverry, or

removing and selling timber in the Teller,

case, the underlying nature of the issues

they dealt with are the same, it seems

to me, as those this Court now faces.

The essence of those cases is the appro-

priation of valuable public resources

for the use and benefit of private indi-

viduals.

In the present case, defendants have

not sold any timber or grazed cattle, Or

operated a saloon. They simply des-

troyed timber and other surface resources.

However, as in the traditional cases,

public resources have been converted for

private benefit by a person who did not

have the right to so convert them. The

public has suffered the loss of these

resources and defendants have derived, or

thought they were deriving, an economic

benefit in the form of reduced prospect-

ing costs. Thus, the essence of both the

traditional cases and the present one is

the unlawful appropriation of public

resources for private benefit.

In light of these broad concerns for

the environmental impact of resource ex-

ploration, defendants responsibility to

contribute to the preservation of the

environment, and the provisions of 30 USC

612, it would be unreasonable to interpret

A- 33

the latter act as permitting unrestrained

and unnecessary surface destruction by a

prospector on a mining claim. Therefore,

this Court finds and holds that the Forest

Service may properly require the locator

of an unpatented mining claim to use non-

destructive methods of prospecting when,

as in the present case, the methods being

used cause unnecessary or unreasonable

destruction to surface resources and the

environment in which they exist, In cases

such as the present one, it cannot be said

that this type of regulation by the For-

est Service falls outside of its authority

to manage the surface resources of a Na-

tional Forest or that it endangers or ma-

terially inteferes with the locator's

right to prospect his claim.

I am satisfied and persuaded that

the Government is entitled to injunctive

relief with respect to those areas in-

volved insofar as the defendants would

otherwise propose to continue their opera-

tions of a prospecting nature by blasting

and bulldozing. These are clearly de-

structive of important forest values and

in light of the evidence, unnecessary as

well as being more expensive and simpler,

less destructive alternative means. Ac-

cordingly, therefore, I propose to issue

an injunction against defendants with

respect to bulldozing and blasting. As

may be jointly agreed upon by the parties

themselves, subject to ratification by

the Court. So I find and conclude that

the plaintiff is entitled to a prohibi-

tory injunction as prayed for,

The subject of the mandatory injunc-

tion demanding defendants to restore the

a-34

area is much more difficult. Among

other things, this requires the Court

to maintain some appropriate study and

scrutiny in the matter over which the

restoration occurs. Frankly, I simply

do not have time to go out there and

study that.

I conclude after much hesitation

and weighing all of the equities care-

fully in exercising my broad discretion,

which a Chancellor has in equity in grant-

ing injunctive relief, I conclude that

such a restorative injunction is unneces-

sary except possibly at Site B. One of

the problems, of course, with restora-

tion at that site is the general absence

of appropriate top soil in the immediate

area. Bulldozing could achieve some

restoration but to effect this change,

it would bring about--but to effect the

change which would bring about any pleas-

ant visual aspect to the scene would

necessarily require depositing consider-

able amounts of top soil over the re-

stored area and this means that it has

to be brought in over a considerable

distance. I do not believe that a res-

torative injunction is appropriate for,

certainly, not for Site A and D and not

also for Site B. Under these circum-

stances, I exercise my discretion to

withhold any granting of mandatory in-

junctive relief for a period of one

hundred twenty days. During that time

I urge the parties to attempt to work out

a compromise solution whereby through

their joint efforts reasonable quantities

of soil may be obtained and deposited

over area B in a cooperative fashion, If

the parties are unable to agree during

that period of time, then I will give

further consideration to issuance of a

no” 35

mandatory injunction of some sort with

respect to restoration of Area B, Area

B as in boy. I reject any requirement

for a restorative injunctive relief with

respect to the other three areas and I

reject the claims of the Government with

respect to award of monetary damages,

As previously mentioned, these

remarks when transcribed will be treated

as findings and conclusions pursuant to

Rule 52.

I believe that concludes the matter

here this morning,

MR. COLLINS: Would you like us to

submit a final form of order?

THE COURT: I suggest with respect

to the proposed form or order you wait

until the transcript has been prepared

and filed. And then I suggest you attempt

to agree upon a proposed form of order

covering everything but the mandatory

injunctive phase with respect to Area B,

If you can't work it out within one hun-

dred twenty days, then I will have to see

what remains.

Mr, Murray, could you work with Mr.

Rifenberg and Mr. Collins in attempting

to prepare a form of order?

MR. MURRAY: Yes. I can, Your Honor.

THE COURT: Thank you,

Defendants served and filed April 4,

1977, Defendants’ Motion for Supplemental

Findings of Fact, supported by Transcript

references, R 52-54,

On May 25, 1977, the Court rejected

these tendered findings and defendants’

objections to the decree proposed by the

Forest Service. R 56,

A- 36

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,)

) . Ciwili Mo.

Plaintiff, ) 73-895

)

Vv. ) FINAL JUDGMENT

) AND DECREE

NED N. RICHARDSON and )

DOROTHY M. RICHARDSON, )

husband and wife, )

)

)

May 25, 1977

Defendants,

This Court has made and filed Find-

ings of Fact and Conclusions of Law with

respect to plaintiffs’ Complaint for pro-

hibitory injunction, restorative injunc-

tion and award of damages. A Final Judg-

ment and Decree in accordance with this

opinion is entered in favor of the plain-

tiff and against the defendants as fol-

lows:

IT IS ORDERED, ADJUDGED AND DECREED:

1. This Court has jurisdiction by

virtue of 28 U.S.C. 1345.

2. Stripping away overburden to ex-

pose rockbed, particularly in the initial

exploration stages, is not proper mining

procedure, under the circumstances shown

by the evidence in this case.

3. Defendants' utilization of blast-

ing and bulldozing was destructive to the

surface resources and consequently not a

reasonable method of exposing subsurface

deposits under the circumstances shown by

the evidence in this case.

A- 37

4. Under the circumstances shown

by the evidence in this case, the Forest

Service may require the locator of an un-

patented mining claim on national forest

lands to use nondestructive methods of

prospecting.

5. Defendants and their successors,

and agents, servants, employees and attor-

neys, and those persons in active concert

or participation with them, are perman-

ently enjoined from conducting prospect-

ing operations by means of bulldozing or

blasting on the following mining claims

located in Sections 7, 8, 15, 17, 18 and

20, Township 4 North, Range 5 E. W.M, in

Skamania County, Washington, Half Penny,

Silver Lode No. 1, Big Twinkle Mine,

Richardson Lode Claim, Richardson Little

Twinkle Mine, and Lucky Strike.

6. Plaintiff shall have judgment

against defendants Ned N, Richardson and

Dorothy M. Richardson jointly and severally

in the amount of $2,263.13 plus its costs

and disbursements herein.

Dated this 25th day of May, 1977,

/s/ James M, Burns

United States District Judge

Presented by:

/s/ Jack Collins

JACK COLLINS

First Assistant United States

Attorney