Petition for Writ of Certiorari — Cherry v. Yeutter

JOSEPH F. SPANION,

CLERK

-~. ~e

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

MYRON CHERRY,

Petitioner,

-vs-

RICHARD LYNG, SECRETARY OF DEPARTMENT OF

AGRICULTURE, et al.,

Respondents.

Petition for Writ of Certioraril

to the U.S. Court of Appeals

For the Tenth Circuit

- —_

Box 4213, Las Cruces

New Mexico 88003

(505) 524-7994

WMurnn fans ‘~rtwu ~Yern ca

+47 wae anna ¥ — ~

QUESTIONS

1. Did the lower courts, trial and

appellate, erroneously deny the petitioner

of his constitutional right te a jury trial?

2. Did the lower court erroneously usurp

the duties of a jury in determining facts?

3. Did the lower court erroneously grant

summary judgment, by determining disputed

facts in favor of the movant for summary

judgment?

4. Did the lower courts erroneously

ignore issues raised in the petitioner's

pleadings?

5. Did the lower court deny the

petitioner of his “last chance” to file

opposing affidavits to summary judgment?

6. Do three failed attempts at criminal

prosecution by respondents against the petit-

ioner, give the petitioner cause for action?

LIST OF ALL PARTIES - CASE NO. 88-1096

U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT

Plaintiff-Appellant

MYRON CHERRY

Defendants-Appellees

RICHARD LYNG, et al.-

1 RICHARD LYNG, Secretary of

Agriculture; F.DALE ROBERTSON, GARY

CARGILL, PAUL C. SWEETLAND, JOHN R.

KIRKPATRICK, CHARLES HARDY, BERNARD

WEINGARDT, RAYMOND BENTZEN, HARRY MOORE,

PAUL PECK, ELAINE ZIEROTH and CHERI BASHOR,

U.S. Forest Service;COUNTY OF LA PLATA,

State of Colorado; CLAUDE DEERING, DORIS

BRENNAN, and ROLLIN ROTH, La Plata County

Commissioners; ALVIN BROWN, JAMES

HARRINGTON, JR., and WILLIAM GARDNER, La

Plata County Sheriff Department, VIC

REICHMAN and JAMES MARTIN III, La Plata

County District Attorney Department, and

SCOTT TRINKLEIN.

“ta '3h- arate

— a we tiie oR : : _

= 1:

TABLE OF CONTENTS

QUESTIONS

LIST OF PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITION FOR WRIT

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS & STATUTES

STATEMENT OF THE CASE

ARGUMENT

CONCLUSIONS

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX G

page

a

a

TABLE OF AUTHORITIES

page

Adickes v. Kress, 398 US 144 15

Black v. Elkhorn, 163 US 445 19

Butz v. Economou, 438 US 478 20

Clipper v. Eli, 194 US 220,231 19

Giordano v. Lee, 403 US 931 15

Griffin v.Prince Edward Sch.377 US 218 20

Jacobson v. Maryland Gas,379 US 964 20

Moran v. Bench, 384 US 906 14,49

Pembaur v. Cincinnati, 475 US 469 16

Rizzo v. Goode, 423 US 362 16

St. Louis Min. v. Montana Min.,

171 US 650 19

U. S. v. Diebold Inc., 369 US 654 12

Cameron v. Vancouver Ply. 266 F.2d 535 17

Deterjet v. United Acft.,211 F.Supp.348 14,15

Elliott v. Elliott, 49 F.R.D. 283 20

Higgs v. Douglas Co. Ct. 713 P.2d 840 20

McSurely v. McClellan, 697 F.2d 309 20

Montgomery v. Gerlinger, 304 P.2d 93 19

Rains v. Cascade, 258 F.Supp. 974 20

U. S. v. Etcheverry, 230 F.2d 194 19

“te ry va - ted

- sett eR yg SEY 1A

U.

S.

Vv.

Weiss,,

642 F.2d 296

18

PETITION FOR WRIT OF CERTIORARI

Petitioner prays that this honorable

Court issue a Writ of Certiorari to review

the judgment and order of the United States

Court of Appeals for the Tenth Circuit, in

this cause.

OPINIONS BELOW

Judgment and Order of appeals court

affirming district court (October 31, 1989)

is attached as APPENDIX A.

Judgment and Order of district court

(November 23, 1987) is attached APPENDIX B.

Order of district court to correct

caption (November 25, 1987) is attached as

APPENDIX C.

Order of appeals court denying rehearing

with oral argument (January 4, 1990) is

attached as APPENDIX D.

JURISDICTION

Petitioner seeks review of Judgment and

Order of the United States Appeals Court for

the Tenth Circuit, dated October 31, 1989,

(Civil Case No. 88-1096, Appendix A.)

Petitioner's Petition for Rehearing With Oral

Argument denied January 4, 1990, (Appendix

D.)

The statutory basis for federal

jurisdiction is Title 28 U.S.C. Sections

1331, 1332 (when filed in New Mexico), and

1343.

Jurisdiction of the United States

Supreme Court is conferred by the United

States Constitution, Article III, Sections

1 and 2 and United States Supreme Court Rules

10.la and 10.l1c.

CONSTITUTIONAL PROVISIONS & STATUTES

(Quotations in Appendix E) page

UNITED STATES CONSTITUTION

Article I Section 10 10

Amendment IV 10

Amendment VII | 10,21

Amendment XIV Section l 10

STATUTES

42 UNITED STATES CODE Section 1983 10

42 UNITED STATES CODE Section 1985 10

42 UNITED STATES CODE Section 1986 10

30 UNITED STATES CODE Section 2la 10,20

30 UNITED STATES CODE Section 26 10,20

16 UNITED STATES CODE Section 475 10,20

16 UNITED STATES CODE Section 478 10,20

16 UNITED STATES CODE Section 482 10,20

16 UNITED STATES CODE Section 528 10,20

16 UNITED STATES CODE Section 551 10,20

FEDERAL RULES OF CIVIL PROCEDURE,

Rule 56. Summary Judgment aa aee as

Rule 53. Masters 22

STATEMENT OF THE CASE

The petitioner is the plaintiff in the

lower court proceedings and the respondents

are defendants.

This action stems from numerous acts by

Forest Service employees against the petit-

ioner anu his mining activities (Amended

Complaint), which acts culminated in the

conspiracy of county officials with Forest

Service employees to frame false criminal

charges in county and state district court

against the petitioner. (Deposition of James

C. Martin,III, Exhibit 5, petitioner's Res-

ponse to County Defendants" Motion for Sum-

mary Judgmeiut, October 1987.)

After a series of three failed attempts

at criminal prosecution (Exhibits, Amended

Complaint,) by respondents against the peti-

tioner, on June 12, 1986 the petitioner (pro

se) filed a Complaint in the United States

District Court, District of New Mexico, under

42 U.S.C. b 1983, 1985, and 1986. The case

was subsequently transferred to the District

of Colorado on October 2, 1986, pursuant to

28 U.S.C. b 1406(a).

The Complaint and a later Amended Com-

plaint (demand jury trial,) allege violations

of petitioner's Constitutional and statutory

rights, and ask for money damages and a

mandamus type injunction prohibiting certain

future acts by respondents against the peti-

tioner. Petitioner's Amended Complaint and

subsequent pleadings cite civil rights laws

and other statutes (see CONSTITUTIONAL PROVI-

SIONS & STATUTES) which forbid the respon-

dents’ activities against the petitioner or

his mining operations. (Appendix E)

DISCOVERY

The limited discovery produced deposi-

tions and a few copies of a very interesting

document, labeled the "Conspiracy Agreement”

by the petitioner (Exhibits in Petitioner's

Responses (to motions for summary judgment, )

October 1987.) The "Conspiracy Agreement" is

a written contract identifying certain county

officers as agents of the Forest Service.

10

Petitioner alleges that the respondents,

followed the “Conspiracy Agreement" to vio-

late his constitutional and statutory rights.

SUMMARY JUDGMENT

Following premature cutoff of discovery,

on October 1, 1987, the respondents moved for

summary judgment, which was granted without

trial or hearing by the district court in

November 1987. Petitioner appealed and the

appeals court affirmed district court's

decision on October 31, 1989. The petitioner

then petitioned for rehearing with oral argu-

ment, and rehearing was denied on January 4,

1990.

Petitioner's Notice of Appeal was served

by first class prepaid mail on March 14,

1990, in accordance with Rule 10, Supreme

Court Rules, as amended March l, 1989.

ARGUMENT

(For ease of interpretation, the peti-

tioner will refer to the "Addendum" in his

"Appellants Brief" (filed February 1988) as

simply “Addendum," and to his "Reply Brief

of Plaintiff to all Defendants and Answer

Brief of Plaintiff to Cross-Appeals" as

simply "Reply," and his multiple "Response

to Defendants’ Motion for Summary Judgment"

(October 1987) as simply "Response.")

The district court, with appeals court

affirmance, diverted its attention to minor

issues in the case, based its reasoning on

selected minor issues, and ignored documented

facts, statutes, and extensive case law

favoring the petitioner, and court ignored

several issues raised by the petitioner. The

district court should have allowed as factual

evidence petitioner's deposition (Exhibit,

Cherry Deposition, in County Defendants'

Motion for Summary Judgment, October 1,

1987), petitioner's pleadings, Exhibits in

the Amended Complaint, and depositions in

the Petitione:'s Response. (U.S. v. Diebold,

369 US 654) and (Rule 56(c)) (Issues raised

in petitioner's Appellant's Brief, page 2,

paragraphs 1 & 2. and Reply page 14.)

AFFIDAVITS

Furthermore, there was no hearing set

(as implied in Rule 56(c) sentence 2, and (d)

sentence 1), and the petitioner, as adverse

party, was denied a last chance to serve

opposing affidavits “prior to the day of

hearing" since there was no hearing on the

summary judgment question. (Issue raised in

Appellant's Brief, page 1, Statement of the

Case and Addendum, page 1, section II.)

The “declarations” in the respondents’

Motions for summary judgment, actually es-

tablish disputed facts because they differ

from the petitioner's submissions.

MISSTATEMENTS

The district court ignored the petitioner's

deposition (Cherry Deposition,) and _ the

Bianca deposition (Exhibit in petitioner's

Responses (of October i987) in misstating the

13

case in its November 23, 1987 Judgment,

Section I.?

DISPUTED FACTS

In referring to Rule 56 (Federal Rules of

Civil Procedure,) the district court,

(1) stated the proper elements as to disputed

facts (page 3, Section II),

(2) recognized disputed facts and then,

(3) ruled on those disputed facts contrary

to Rule 56, throughout its judgment of Novem-

ber 23, 1987.°

2 .

Issue raised in Addendum to Appel-

lant's Brief, page 1, section "I"

page 1, sentence 1;

page 2, line 1;

page 2, line 3;

page 2, line 7;

page 2, paragraph 2;

page 2, last paragraph.

3. Issue of disputed facts raised in

Appellants Brief,

page 2, topic l.;

page 2, topic 2.;

Addendum to Appellant's Brief,

page l, section I;

3

I

page 2, section I

page 2, section A.1;

page 2, section A.2;

page 3, section A.3;

page 3, section A.4;

page 4, section C

Adickes v. Kress, 398 US 144

14

SUMMARY JUDGMENT ON CONSPIRACY ALLEGATIONS

The district court, with appeals court

affirmance, has declined to give a proper

hearing to the petitioner's allegations of

respondents’ conspiracy. The existence of the

"Conspiracy Agreement” and subsequent treat-

ment of the petitioner in accordance with

that agreement raise serious questions which

the lower courts dismiss lightly.‘ In con-

trast, this Court has been emphatic and clear

in its reluctance to allow the use of summary

judgment against allegations of conspiracy.”

ISSUES IGNORED BY LOWER COURTS

Issues raised in the Amended Complaint, not

heard by the district court and raised again

in the petitioner's Reply are:

4 Issue raised in Addendum to Appel -

lants brief;

page 2, section A.1l;

page 3, section A.3;

page 3, section A.4;

page 3, section B;

page 4, section C.

3

Cases cited in petitioner's Reply:

Moran v. Bench, 384 US 906;

Deterjet v. United, 211 F. Supp. 348;

15

Whether or not federal respondents,

lacked jurisdiction over petitioner's mining

activities, abused their authority, met with

Respondent Martin to conspire and prepare

false charges against the petitioner, con-

spired with district attorney respondents to

deprive the petitioner of his rights under

the color of state law, interfered with

petitioner's private business contracts,

interfered with petitioner's mining act-

ivities, caused the petitioner mental stress

and anguish, conspired to deny the petitioner

of his statutory rights, and are liable for

money damages to the petitioner.

Whether or not county and district

attorney respondents, performed investigative

acts outside the prosecutorial function and

lost prosecutorial immunity, met with Forest

Service personnel to conspire and prepare

false charges against the petitioner, con-

Spired with the federal respondents to dep-

rive the petitioner of his rights under the

color of state law, had a policy that unlaw-

16

fully worked against the rights of the petit-

ioner (Pembaur v. Cincinnati, 475 US 469),

are responsible under the “respondeat super-

ior” theory (Rizzo v. Goode, 423 US 362) for

policy and training, and are liable for money

damages to the petitioner.

Whether or not sheriff respondents, were

responsible for policy and training of Deputy

Bianca, set the conditions for the false

arrest of the petitioner on August 27, 1985,

were responsible for change of department's

policy which deprived the petitioner of

equal protection and equal treatment of the

laws, through the Cooperative Agreement had

a policy that worked against the rights of

the petitioner, conspired with federal res-

pondents to deny the petitioner of his con-

stitutional rights, and are liable for money

damages to the petitioner.

Whether or not the petitioner is en-

titled to a mandamus type injunction against

the respondents.

PRECEDENT CASES NOT FOLLOWED

17

The lower courts ignored extensive case

law cautioning against use of summary judg-

ment in cases such as this one. District

court attributed a "more liberal use of

summary judgment" to Anderson v. Creighton,

Céelotex v. Catrett, and Anderson v. Liberty

Lobby, but those cases do not have the same

elements as this one. This case involves

allegations of conspiracy and calls for a

trial by jury. (Cited in the petitioner's

Responses of October 1987, Issue raised in

Appellant's Brief, February 1988)

OTHER HARASSMENTS

Due to premature cutoff of discovery,

petitioner obtained and submitted only limit-

ed evidence in the way of depositions. Two

unsubmitted depositions describe circumstan-

ces of Forest Service interference with

possible business contracts of the petition-

er, regarding use of the Parrott City Mill

Giordano v. Lee, 403 US 931

Moran v. Bench, 384 US 906

Deterjet v. United, 211 F.Supp.348

18

Sites with miners interested in erecting a

mill to process their ore. (issue raised in

petitioner's Reply, page 5.)

In further regard to the Parrott City

Mill Sites, respondent Peck is using his new

36 C.F.R. 228 “LAW” in the tradition of

respondents Bentzen, Weingardt, Zieroth, and

Bashor. (See Appendix F.)

In regard to the disputed cabin, the

disdain for due process continues. According

to an official letter from respondent Peck,

it has been "dismantled." (See Appendix G.)

The harassment continues.

JURISDICTION OF FOREST SERVICE

The Forest Service respondents have

never established their jurisdiction over the

petitioner or his mining activities, nor have

, _

they responded to the petitioner's allega

tions in the pleadings. (Response to Federal

respondents’ failure to answer petitioner's

19

allegations of jurisdiction, but instead have

cited the non sequitur (U.S. v Weiss, 642

F.2d 296) case applying to surface mining.

The federal respondents have not respon-

ded to and the lower courts have refused to

consider the petitioner's repeated references

to case law and pertinent statutes forbidding

Forest Service administration and management

7 and statutes favoring

of mining activities

the petitioner's mining activities. Further-

more, petitioner is entitled to injunctive

relief against the federal respondents to

prevent future unlawful interference with his

mining activities, (Claim 1, Amended Com-

plaint.)

30 U.S.C. Section 2la

30 U.S.C. Section 26

16 U.S.C. Section 475

16 U.S.C. Section 478

16 U.S.C. Section 482

16 U.S.C. Section 528

16 U.S.C. Section 551

Cited in petitioners Reply:

Clipper v. Eli, 194 US 220

St.Louis Min. v. Montana Min., 171 US

650

Black v. Elkhorn, 163 US 445

U.S. v. Etcheverry, 230 F.2d 194

Montgomery v.Gerlinger, 304 P.2d 93

20

JURY TRIAL DENIED

The district court erroneously and

arbitrarily decided that there was no con-

Spiracy, usurping the duty of a jury to

determine facts. This flies in the face of

: and constitutional

extensive case law

guarantee. (Amendment VII) The district cou-

rt's grant of immunity to respondents is

another usurpation of the duties of a jury,

in that the court determined disputed facts,

and in favor of movants for summary judgment.

IMMUNITY

The issues of the various immunities of

respondents have been raised by the petition-

er in his Addendum and elaborated on in his

Reply of May 1988.°

3. Issue raised and cited in petition-

ers Reply:

Cameron v. Vancouver, 266 F.2d 535

Jacobson v. Maryland Gas, 379 US 964

Rains v. Cascade, 258 F.Supp. 974

Elliott v. Elliott, 49 F.R.D. 283

7 Reply Brief to All Defendants,May 88

page 4, all;

page 17, 18, 19, 26, 29 thru 33

Butz v. Economou, 438 US 478

Higgs v. Douglas Court, 713 P.2d 840

“a 7

PRO SE PROBLEMS

If the petitioner's pleadings did not

please the district court, the court could

have appointed a special master (FRCP Rule

53) to help the pro se petitioner navigate

the technicalities in the case. The district

court made repeated admonitions that the

petitioner hire an attorney ,~° but petitioner

(not an indigent,) does not have the finan-

cial resources to hire an attorney for a case

of this magnitude, and can only proceed as

pro se.

In the interest of justice, the district

court should have appointed a special master

to whom the petitioner could refer for ex-

planations of legal niceties and intricacies,

to streamline the case for jury trial.

The deviations of the district court,

McSurely v. McClellan, 697 F.2d 309

Griffin v. School Bd, 12 L.Ed. 2d 256

10 Transcripts in Record on Appeal:

Discovery/Scheduling, April 22, 1987,

Pretrial Hearing, August 11, 1987,

Status Hearing, October, 1987.

j a“

with appeals court affirmance, from settled

law enumerated above, should be a matter of

concern for this honorable Court. The dis-

trict court's dismissal of conspiracy char-

ges, granting summary judgment, denial of

trial by jury, and the appeals court's affir-

mance, are serious matters that call for an

exercise of this Court's power of supervision

and settlement of these important questions

of federal law.

23

CONCLUSIONS

Civil rights begin and end with the

personal rights of the individual citizen.

The "Bill of Rights" is a unique group of

constitutional amendments designed to protect

the individual citizen from the abuses of

government, including the federal government.

If the courts are to follow the,Constitution,

they must make every attempt to follow the

spirit of the Bill of Rights as well as the

letter of the law. The lower courts have

failed in letter and spirit in this case.

"Sovereign Immunity” is a judicial

construction without statutory basis, and

being born of judicial invention, is suscep-

tible to judicial abuse by unwarranted exten-

Sion, also without statutory basis. Such

judicial “activism,” although an expedient

tool in extending power of government offic-

ials, must have limits to prevent the crea-

tion of an elite that is above the law.

Without limits, grasping officials, ever

desirous of more authority and more power to

24

"do their job," will create an elitist gov-

ernment that is above the Constitution and

laws of the United States. The lower courts

have erroneously decided that the federal

defendants and their agents are above the law

in this case, and their orders further the

creation of a federal police state.

It is within the duty and power of this

honorable Court to remind the lower courts

of their obligation to the Constitution and

remand this case for jury trial.

FINALLY

The petitioner prays that this honorable

Court will issue a Writ of Certiorari to the

U.S. Court of Appeals for the Tenth Circuit,

for review of this case, remand to district

court for jury trial with a new Complaint and

more discovery and instruct the courts to

appoint a special master to guide this pro

se petitioner.

@0

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

(Filed Oct 31,

(Robert Hoecker,

MYRON CHERRY,

Plaintiff-Appellant/

Cross-Appellee

Vv.

COUNTY OF LA PLATA,State of CO;

CLAUDE DEERING; DORIS BRENNAN

and ROLAND ROTH, in their offi-)

cial capacity as La Plata Coun-)

ty Commissionners; ALVIN BROWN; )

JAMES HARRINGTON, JR.; WILLIAM )

GARDNER; VIC REICHMAN; JAMES )

MARTIN,III, in their individual )

and official capacities,

ee ee ee ee

)

)

Defendants-Appellees/ )

Cross-Appellants, )

)

)

\

)

RICHARD LING, in his official

capacity as Secretary of the U.

S. Department of Agriculture;

DALE ROBERTSON, in his official)

capacity as chief of the U.S. )

Forest Service; GARY CARGILL,in)

his official capacity as Region-

al Forester, Rocky Mountain Reg-

ion, U.S. Forest Service; PAUL )

C. SWEETLAND; JOHN R. KIRKPATR- )

ICK; CHARLES HARDY; RAYMOND BEN-

TZEN; PAUL PECK; HARRY MOORE; )

ELAINE ZIEROTH; BERNARD WEIN- )

GARDT;: and CHERI BASHOR, each )

in their individual and offici-)

al capacities, )

)

“J

Defendants-Appel

26

od

Clerk)

C.No.86-

F-

(D.

2094)

Colo.)

After examining the briefs and

appellate record, this panel has determined

unanimously that oral argument would not

materially assist the determination of

these appeals. See Fed. R. App. P. 34(a)

™.

10th Cir. R. 34.1.9. The cases are

therefore ordered submitted withcut oral

argument.

Plaintiff appeals from a district

court order granting defendants’ motions

for summary judgment and dismissing this

civil rights action. Defendants cross

appeal from the district court's denial of

their motions for attorney's fees under 42

U.S.C. §® 1988.

* This order and judgment has no preceden-

tial value and shall not be cited, or used

by any court within the Tenth Circuit, ex-

cept for purposes or establishing the doc-

trines of the law of the case, res judic-

ata, or collateral estoppel. 190th Cir. R.

-~WVow eo

. P : i

We concur in the district court's

determination on the merits, and, finding

no abuse of discretion, see Supre v, Rick-

etts, 792 F.2d 958, 961 (10th Cir. 1986),

affirm the court's denial of defendants'

motions for attorney's fees as well.

The pending motion for substitution of

counsel filed by defendants Brown, Harring-

ton, and Gardner is GRANTED. The judgment

of the United States District Court for the

District of Colorado is AFFIRMED.

The mandates shall issue forthwith.

ENTERED FOR THE COURT

PER CURIAM

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Action No. 86-F-2094

(Filed Nov. 23, 1987)

MYRON CHERRY, (James Manspeaker,Clerk)

Plaintiff,

Vv.

RICHARD LYNG, in his official capacity as

Secretary of the U.S. Department of Agricul-

ture; R. MAX PETERSON, in his official capa-

city as Chief of the U.S. Forest Service;

GARY CARGILL, in his official capacity as

Regional Forester, Rocky Mountain Region,

United States Forest Service; PAUL C. SWEET-

LAND, JOHN R. KIRKPATRICK, CHARLES HARDY,

RAYMOND PECK, AND CHERI BASHOR, each in their

individual and official capacity; COUNTY OF

LA PLATA, STATE OF COLORADO; CLAUDE DEERING,

DORIS BRENNAN, AND ROLLIN ROTH, in their

official capacity as La Plata County Commis-

sioners; ALVIN BROWN, JAMES HARRINGTON, JR.,

WILLIAM GARDNER, VIC REICHMAN, JAMES MARTIN

III, in their individual and official capaci-

ty,

Defendants.

ORDER

Sherman G. Finesilver, Chief Judge

This matter comes before the court on

defendants’ motions for summary judgment

pursuant to Rule 56 of the Federal Rules of

Civil Procedure. After careful review of

defendants’ pleadings and attached exhibits

29

as well as plaintiff's timely responses, the

court GRANTS defendants" motions for the

reasons set forth below.

Be

Plaintiff's claims evolve largely from

his arrest by La Plata County sheriff offi-

cials and federal officers on August 27,

1985, on property located in the San Juan

National Forest. Plaintiff asserts that he

was residing peacefully in a cabin on his

"mining claim", the Mom Lode Claim, when the

officers arrested him for felony menacing and

criminal trespass. Plaintiff staked out an

interest in this mining claim and a milling

claim, the Parrott City Mill Site, both

located in the San Juan National Forest.

Plaintiff's mining claim is apparently val-

id. However, the parties dispute plaintiff's

right to occupy a cabin located upon the

land. According to the defendants, the fed-

eral government owns the cabin in fee simple.

However, plaintiff claims the right to occupy

the dwelling. The alleged harassing incidents

30

occurred when government authorities asserted

their ownership interest in the cabin.

On August 27, 1985, two forest service

employees were called to the cabin to invest-

igate a neighbor's observation that plaintiff

damaged federal property by tearing down a

sign proclaiming that the cabin belonged to

the government. Upon arriving at the cabin,

defendants encountered plaintiff. Plaintiff

fired a shot into the air to warn the rangers

away from the cabin. They told plaintiff that

he was trespassing on government property,

but plaintiff refused to leave the cabin. The

rangers then called for help from the La

Plata County Sheriff's Department, and plain-

tiff was placed under arrest after he reached

for his gun in the presence of the officers.

Plaintiff claims he was unlawfully taken to

the La Plata County Jail and that officials

used unnecessary force to effect his arrest.

Plaintiff further alleges that, while

incarcerated, his personal property and

possessions were taken by La Plata County

31

officers and were unlawfully made available

to unknown U.S. Forest Service personne!

employed by the San Juan National Forest.

Finally, plaintiff claims that the charges

brought against by the La Plata County dis-

trict attorney, which were subsequently

dropped, were part of a pattern of harass-

ment, threats, and intimidation designed to

deter him from freely conducting his mining

operations.

Plaintiff sues representatives of the

United States Forest Service, nine federal

officers, La Plata County, two La Plata

County district attorneys, three La Plata

County commissioners, and three persons from

the La Plata County Sheriff's Department. He

claims numerous violations of his civil

rights, and his complaint states causes of

action under 42 U.S.C. bb b 1983, 1985, and

1986. In addition to the allegations outlined

above, plaintiff questions the authority of

the Forest Service and its employees to

manage plaintiff's mining activities. Mr.

32

yeas mr

Cherry seeks injunctive relief and money

damages.

Plaintiff originally filed this action

in the United states District court for the

District of New Mexico on June 12, 1986. On

October 2, 1986, the court transferred this

case to the District of Colorado pursuant to

defendants’ motion to change venue. We have

jurisdiction over the subject matter of this

lawsuit pursuant to 42 U.S.C. by 1983.

i >

Summary judgment under Rule 56 of the

Federal Rules of Civil Procedure must be

granted if the pleadings, depositions, af-

fidavits, and admissions on file show that

there are no genuine issues of material fact

and defendants are entitled to judgment as

a matter of law. Fed. R. Civ. P. 56(c). Sum-

mary judgment assures the inexpensive and

speedy determination of lawsuits where a

party fails to make a showing sufficient to

establish the existence of an element es-

senttial to that party's case. Once a prop-

33

Te se Ree Be ERY ee oe Si a ee aie sa ails

erly supported summary udgment motion is

filed, the opposing party may not rest on the

allegations contained in his p

must respond with specific facts, in aff-

idavits or otherwise, showing the existence

of a genuine factual issue to be tried. Wren

v. Heckler, 744 F.2d 86 (10th Cir. 1984). I:

reviewing a motion for summary judgment, we

must view the evidence in the light most

favorable to the party opposing the motion.

Wheeler v. Hurdman, 825 F.2d 257, 260 (10th

Cir. 1987). Recently, the Supreme Court

Sanctioned more liberal use of summary

judgment. See Anderson v. Creighton, 107

S.ct. 3034, 3042 n.6 (1987); Celotex Corp.

v. Catrett, 106 S. Ct. 2548 (1986); Anderson

v. Liberty Lobby, 106 S.Ct. 2505 (1986).

A. County defendants motion for summary judqd-

Defendants County of La Plata, State of

lorado, Claude Deering, Doris’ Brennan,

Rollin Roth, Vic Reichman, and James C.

pu

~~

cr

~-

7

4

om |

rr

, filed their motion for summary

34

judgment on October 1, 1987. Plaintiff's

amended comnplaint asserts causes of action

against these defendants pursuant to 42 U.S.C py

b 1983, 1985, and 1986. Defendants Deering,

Brennan, and Roth were sued in their official

capacities only, while defendants Reichman

and Martin were sued in both their official

and individual capacities.

1. Defendant county of La Plata

Municipal liability under 42 U.S.C. gy

1983 cannot be imposed unless plaintiff

alleges that his injuries were inflicted

pursuant to a governmental policy or custom.

Monel] y. New kYork City Dept. of Social

Services, 436 U.S. 658, 694 (1978). The facts

set before the court do not establish the

existence of an unconstitutional custom,

practice, or policy invoked by the County of

La Plata. Proof of a single instance of

unconstitutional activity is insufficient to

impose civil rights liability on the munici-

pality under the Monell rule unless plaintiff

can also prove the incident was caused by an

i 35

a See ee

q

;

:

.

existing unconstitutional policy. City of

Oklahoma City v. Tuttle, 105 S. Ct. 2427

(1985). Plaintiff contends that either the

single act of his arrest or the act of Dis-

trict Attorney Reichman's addition of count

one to the criminal indictment against him

constitutes an act by a county policymaker

sufficient to establish the existence of an

unconstitutional custom or practice. We

disagree. There are simply no facts present-

ed in this case to support Mr. Cherry's

contention that any of the individuals in-

volved in plaintiff's arrest and subsequent

charging were acting pursuant to an uncon-

stitutional county custom, policy, or prac-

tice. The County of La Plata is therefore

entitled to summary judgment in its favor on

the section 1983 claims brought against it

by plaintiff.

, oo } Lone rin e

Roth

Plaintiff sued La Plata County Commis-

sioners Deering, Brenna, and Roth in their

36

— eee

official capacities. He alleges that these

defendants may have instructed a county

employee, John Gray, to revoke his driveway

permit. Defendants Deering, Brennan, and Roth

supplied affidavits to the court affirmative-

ly denying that they had conveyed any direc-

tions or instructions to any county employee

concerning Mr. Cherry. Plaintiff did not

refute these affidavits by presenting evi-

dence to the contrary. Thus, the court finds

that these defendants did not personally

participate in any violation actionable under

42 U.S.C. b 1983. Defendants Deering, Bren-

nan, and Martin are entitled to summary

judgment on the claims against them. Bennett

v. Passic, 545 F.2d 1260,1262 (10th Cir.

1976).

3. Defendants Reichman and Martin

Plaintiff sues defendants Reichman and

Martin in their individual capacities and in

their official capacities as district attor-

ney and deputy district attorney for the

Sixth Judicial District in the State of

37

= ak Neda. ge al oe lane

Colorado. Plaintiff alleges that defendant

Martin falsified facts to support the docu-

ment charging plaintiff with menacing and

criminal trespass, and plaintiff claims that

Martin wrongfully interviewed the witnesses

to the crimes prior to filing charges against

him. Mr. Cherry sues defendant Reichman for

rewriting the complaint originally drafted

by defendant Martin and for failing tc

adequately supervise Martin.

The court believes that all of the

actions allegedly taken by Deputy District

Attorney Martin and District Attorney Reich-

man were within the scope of their respective

duties as state prosecutors. Mr. Cherry

failed to submit any evidence that either of

the defendants acted in bad faith or acted

outside the scope of their employment. Thus,

plaintiff's claims against defendants Martin

and Reichman under 42 U.S.C. b 1983 are

absolutely barred by the doctrine of prosec-

utorial immunity. Imbler _v. Pachtman, 424

U.S. 409,427 (1976); Coleman v. Turpen, 697

38

F.2d 1341,1344 (lOth Cir. 1983). The defen-

dants’ motion for summary judgment on these

Claims is granted.

4. Plaintiff's section 1985 and 1986

Claims

Plaintiff also alleges that al] of the

county defendants Participated in a conspir-

acy to violate his constitutiona!] rights. His

complaint cites a Violation of 4? ¥.6.¢. t

1985(2)., However, plaintiff fails to alleg

1)

that any Party defendant named in this case

conspired to deprive him from testifying or

attending any court action. The court there-

fore assumes that Mr. Cherry intended to

State a claim under 42 U.S.c. b 1985(3).¢

a Section 1985(3) Prohibits two or

more persons to conspire for the Purpose of

depriving, either directly of indirectly,

any person or class of persons of the equa]

Protection of the laws, or of equal privil-

eges and immunities under the law. A Civil]

Conspiracy is a combination of two Or more

Persons acting in concert to commit an un-

lawful act, or to commit a lawfy] by unlaw

ful means, the Principal element Of which

1S an agreement between the parties to in-

In order to establish a cause of action

under 42 U.S.C. bg 1985(3), plaintiff must

allege: (1) that defendants conspired; (2)

for the purpose of depriving plaintiff of

equal protection or equal privileges and

immunitties under the law; (3) that one or

more of the co-conspirators did or caused to

be done an act in furtherance of the con-

>

rh

rh

Splracy; and (4) that, as a result, plainti

incurred personal injury, injury to property,

Or was deprived of naving and exercising a

vital privilege of citizenship.

Breckenridge, 403 U.S.88, 102-03 (1971).

Plaintiff's complaint does not set forth

facts sufficient to support a claim of c

O

—-

Q

>

~

=~

—~

\O

o 8)

)

Spiracy under se Cherry cannot

-~

—

establish an allegation of conspiracy mere

by making the conslusory claim that the

defendants conspired. Sooner Products Co. v,

McBride, 708 F.2d 510,512 (10th Cir. 1983);

Slotnick v. Garfinckle, 632 F.2d 163,165-6¢

40

admitted in his deposition that the conspir-

acy he alleges was not motivated by a class-

based animus. However, plaintiff must allege

Some racial or class-based discriminatory

animus to support a claim of conspiracy under

42 U.S.C. b 1985(3). Silkwood v. Kerr-McGee

Corp., 637 F.2d 743,748 (10th Cir. 1980). Mr.

Cherr

y's response to these motions that he

suffered invidious discrimination does not

persuade the court. Even if Mr. Cherry had

properly pled these facts in his complaint,

the court is satisfied that miners are no

statutorily protected class. Moreover,

mw

ion 1985(3) does not apply to conspira-

cies motivated by an economic or commercial

animus. United Brotherhood of Carpenters v.

“ma

Scott, 463 U.S. 825,838-39 (1983). The court

will dismiss these claims without prejudice

for plaintiff's failure to state a claim upon

which relief may be granted pursuant to Rule

to prevent a known conspiracy must be predi-

cated upon the existence of a conspiraacy

under section 1985. Santistevan v. Loveridge,

732 F.2d 116,118 (10th Cir. 1984). Plain-

tiff's failure to allege a conspiracy under

section 1985 warrants that this court dismiss

his claims brought under section 1986 as

well.

B. Sheriff's defendants motion for summary

judgment

The sheriff's defendants, Alvin Brown,

James Harrington, Jr., and William Gardner,

filed their motion for summary judgment on

October 1, 1987. Plaintiff alleges that these

three defendants acted to deprive him of his

civil rights by failing to investigate his

complaints against neighboring property

owners and by mishandling his arrest and

subsequent confinement on criminal trespass

and felony menacing charges. Mr. Cherry sets

forth claims under section 1983. In addition,

he alleges that these three defendants acted

in concert with the La Plata County District

42

Attorney's office and conspired to deprive

him of his constitutional rights. We dis-

cussed the insufficiency of plaintiff's

conspiracy pleading under sections 1985 and

1986 above, and the court will dismiss plain-

tiff's conspiracy claims against these defen-

dants as well.

The court also finds that the sheriff's

defendants are entitled to summary judgment

on the allegations brought against them

pursuant to 42 U.S.C. b 1983. The defendants

correctly assert that they are entitled to

qualified immunity from liability on these

claims. The doctrine of qualified immunity

protects law énforcement officers who act

reasonably under the law. The court's deter-

mination of whether qualified immunity app-

lies will turn on the objective legal rea-

sonableness of the officers’ actions. Harlow

v. Fitzgerald, 457 U.S. 800, 819 (1982). The

court will not find that the defendants’

actions are illegal unless the unlawfulness

of their actions is apparent in light of

preexisting law. Anderson v. Creighton, 107

$§.ct. at 3042.

We find that the sheriff's defendants

are protected form personal liability by

qualified immunity, and the law entitles them

to summary judgment. The affidavits proffered

by Brown, Harrington, and Gardner demonstrate

that they acted in good faith and with prob-

able cause in all dealings with plaintiff.

These defendants reasonably believed that

their actions complied with established legal

principles. Mr. Cherry does not refute the

facts presented in defendants’ affidavits.

Moreover, plaintiff fails to allege any facts

O

demonstrating that these defendants violated

his constitutional rights. We therefore grant

summary judgment in favor of defendants

Brown, Harrington, and Gardner.

C. Federal defendants motion for summary

defendants involves a conflict between the

plaintiff, a miner and holder of an unpatent-

ed mining claim, and the United States Forest

Service, the federal agency charged with

regulating certain activities in the national

forests. The parties contest the ownership

of a cabin located on national forest land

in the area of plaintiff's Mom Lode mining

claim. The United States issued a special use

permit to Mr. and Mrs. Oscar Hawkins, allow-

ing them to occupy the cabin until Mr.

Hawkins death, at which time the cabin would

revert to the United States. Mr. Hawkins died

in 1980. Within four months of his death,

plaintiff modified his mining claim to in-

clude the land upon which the cabin is lo-

cated. Since modifying his claim, Mr. Cherry

or one of his employees has occupied the

cabin intermittently.

The Forest Service asserts that Mr.

Cherry is trespassing on United States prop-

erty, while plaintiff contends that the

modification of his mining claim to include

the land underneath the cabin entitles him

to occupy it. The Government points to reg-

45

ulations prohibiting a permanent structure

on nonpatented mining claims. The Govern-

ment's attempts to reclaim the cabin from

plaintiff led to plaintiff's arrest by the

La Plata County Sheriff's Department after

he fired a shot in the vicinity of two For-

est Service employees investigating plain-

tiff's destruction of its no trespassing

sign.

The court finds that the federal defen-

dants did not act to deprive plaintiff of

his constitutional rights with respect to

the Hawkins cabin. Plaintiff admitted in his

deposition that the United States of America

owns the cabin. (Plaintiff's deposition at

44,54,74). Although Mr. Cherry

rm

wo

W

~

O

J

oF

w

~

O

these motions for summary judgment by at-

oa]

tempting to change his answers, the court i

persuaded that the defendants acted in good

received numerous warnings that his continu

ed occupancy and use of the cabin constitut-

46

ed trespass on government property. Plain-

tiff's claims that the government illegally

harassed him during his occupancy of the

dwelling have no basis in fact or law.

Plaintiff also claims that the federal

defendants have illegally prohibited plain-

tiff from conducting a milling operation on

his Parrott City Mill Site. The government

asserts that plaintiff has failed to adopt

an operating plan and post a $2,000.00 res

toration bond, as required by federal regu-

lations. See 36 C.F.R. Part 228 et seq. Mr.

Cherry questions the authority of the Forest

Service to regulate his activities and as-

oO

serts that any attempt by its employees ¢t

apply the regulations to him constitutes

unlawful harassment.

Plaintiff sues defendants Richard Lyng

Secretary of the Department of Agricultur

dD

R. Max Peterson, Chief of the U.S. Fore

shi ~ ~~ ~-a

63

Service, and Gary Cargill, Regional Forester

for the Rocky Mountain Region, in their offi

cial capacities in the federal

QO

47

He contends that the Forest service does not

have authority to regulate surface activity

in the National Forest when that activity

involves mining. We disagree. The Department

of Agriculture, acting through the Forest

Service, has the statutory authority to

regulate surface mining in national forest

areas, so long as those regulations are

reasonable. See United States v. Weiss, 642

F.2d 296,298-99 (9th Cir. 1981) (presenting

an extensive analysis of the statutory autho-

rity permitting the Department of Agriculture

to adopt such regulations). Moreover, Forest

Service regulations which require owners of

unpatented mining claims located in national

forest areas to file operating plans are val-

id. See United States v. Goldfield Deep Mines

Co. of Nevada, 644 F.2d 1307 (9th Cir. 1981).

The attempts by the Forest Service to enforce

these regulations against Mr. Chery are

presumptively legal and do not constitute

harassment. Again, plaintiff fails to support

his claims of illegal harassment with evid-

48

ence that the Forest Service acted in bad

faith of outside the scope of reasonable

regulatory authority in requiring that plain-

tiff file an operating plan and post a

restoration bond prior to conducting mining

activities. The defendants representing the

Forest Service are entitled to summary judg-

ment on plaintiff's claims with respect to

the Parrott City Mill Site.

The individual federal defendants, Paul

Sweetland, John Kirkpatrick, Paul Peck, Cheri

Bashor, Elaine Zieroth, Bernard Weingardt,

Harry Moore, Raymond Bentzen, and Charles

Hardy, each submitted sworn affidavits to the

court. These declarations describe and ex-

Plain with great specificity each incident

of contact the defendants had with plaintif®é.

The affidavits persuade the court that none

of the individual defendants named in this

complaint acted in bad faith or acted outside

the scope of the authority granted to them

under the law.

Moreover, we do not believe that these

49

defendants conspired to violate plaintiff's

constitutional rights. The alleged "Conspi-

racy Agreement" referred to by plaintiff in

his responses to these motions does not evi-

dence a conspiracy between the United States

Forest Service and La Plata County. Rather,

the Cooperating Law Enforcement Agreement

Joint Operating and Financial Plan merely

sets forth an agreement between the Forest

Service and the county regarding the need for

and financing of law enforcement prevention

and execution services requested by the

Forest Service form the La Plata County

Sheriff's Department.

Mr. Cherry failed to refute the facts

set forth in the affidavits of the individ-

ual defendants. Plaintiff has not presented

the court with any facts to support his

claims that these defendants acted outside

the scope of U.S. Forest Service policy or

illegally applied the valid Forest Service

regulations to him. He has presented no

evidence to back his claims that these de-

50

fendants conspired to have him falsely ar-

rested or acted to damage his reputation and

cause him emotional distress. In the absence

of evidence indicating a violation of clear-

ly established law, the individual federal

defendants are entitled to qualified immuni-

ty from liability. Harlow v. Fitzgerald, 457

U.S. 800 (1982). The court will enter summary

judgment in their favor on all claims against

them.

Accordingly, for the reasons set forth

above, IT IS ORDERED:

1. Plaintiff's claims of conspiracy

under 42 U.S.C. bb 1985 and 1986 are DIS-

MISSED WITHOUT PREJUDICE pursuant to Rule

12(b)(6) of the Federal Rules of Civil Pro-

cedure.

2. Summary judgment enter in favor of

the County of La Plata, State of Colorado,

on all claims brought against it.

3. Summary judgment enter in favor of

Claude Deering, Doris Brennan, and Rollin

Roth on all claims brought against them.

Si

aro

4. Summary judgment enter in favor of

Vic Reichman and James Martin,III, on all

claims brought against them.

5. Summary judgment enter in favor of

Alvin Brown, James Harrington, Jr., and

William Gardner on all] claims brought against

them.

6. Summary judgment enter in favor of

Paul C. Sweetland, John R. Kirkpatrick,

Charles Hardy, Raymond Peck, and Cheri Bas-

hor on all claims brought against them.

7. Summary judgment enter in favor of

Richard Lyng, R. Max Peterson, and Gary

Cargill on all claims brought against them.

The court further ORDERS that the com-

plaint and cause of action be DISMISSED, each

party to bear their own costs.

The clerk of the court is DIRECTED to

enter the appropriate judgments.

Done this 23 day of November, 1987, in

Denver, Colorado.

BY THE COURT:

Sherman G. Finesilver,Chief Judge

United States District Court

52

iinrieeeeeretemeerernesianeemeeeneteniliiia iat

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.86-F-2094

(Filed Nov. 23,1987)

MYRON CHERRY, (James Manspeaker, Clerk)

Plaintiff,

Vv.

RICHARD LYND, in his official capacity as

Secretary of the U.S. Department of Agri-

culture; R. MAX PETERSON, in his official

capacity as chief cf the U.S. Forest Service;

GARY CARGILL, in his official capacity as

Regional Forester, Rocky Mountain Region,

United States Forest Service; PAUL C. SWEET-

LAND, JOHN R. KIRKPATRICK, CHARLES HARDY,

RAYMOND PECK, AND CHERI BASHOR, each in their

individual and official capacity; COUNTY OF

LA PLATA, STATE OF COLORADO; CLAUDE DEERING,

DORIS BRENNAN, AND ROLLIN ROTH, in their

official capacity as La Plata County Commis-

sioners; ALVIN BROWN, JAMES HARRINGTON, JR.,

WILLIAM GARDNER, VIC REICHMAN, JAMES MARTIN

III, in their individual and official capac-

ity

Defendants.

eee eee eee eee ae ia ia a ae a ae ee ee ee ee ee Oe er KH Oe eH eM em emer ere er ew er em eK eK

Pursuant to and in accordance with the

Order dated and signed November 23, 1987, by

the Honorable Sherman G. Finesilver, District

Judge, is

ORDERED AND ADJUDGED that judgment be

entered in favor of the defendants and

53

|

against the plaintiff, each party to pay

their own costs. It is

FURTHER ORDERED that the action and

Complaint be and are hereby dismissed.

DATED at Denver, Coiorado this 23rd day of

November, 1987.

FOR THE COURT:

JAMES R. MANSPEAKER, CLERK

BY:

Stephen P. Ehrlich,

Chief Deputy Clerk

54

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Action No. 86-F-2094

(Filed Nov.25, 1987)

MYRON CHERRY, (James Manspeaker, Clerk)

Plaintiff,

Vv.

RICHARD LYNG, in his official capacity as

Secretary of the U.S. Department of Agri-

culture; R. MAX PETERSON, in his official

capacity as chief of the U.S. Forest Service;

GARY CARGILL, in his official capacity as

Regional Forester, Rocky Mountain Region,

United States Forest Service; PAUL C. SWEET-

LAND, JOHN R. KIRKPATRICK, CHARLES HARDY,

RAYMOND BENTZEN, PAUL PECK, HARRY MOORE,

ELAINE ZIETROTH, BERNARD WEINGARDT, AND CHERI

BASHOR, each in their individual and official

capacity; COUNTY OF LA PLATA, STATE OF

COLORADO; CLAUDE DEERING, DORIS BRENNAN, AND

ROLLIN ROTH, in their official capacity as

La Plata County Commissioners; ALVIN BROWN,

JAMES HARRINGTON, JR., WILLIAM GARDNER, VIC

REICHMAN, JAMES MARTIN III, in their in-

dividual and official capacity,

Defendants.

ORDER

Sherman G. Finesilver, Chief Judge

The court hereby amends its order, filed

November 23, 1987, as follows. The caption

shall be amended as set forth above. Paragr-

aph 6 on page 14 shall now read:

6. Summary judgment enter in favor of

Paul Cc. Sweetland, John R. Kirkpatrick,

Charles Hardy, Raymond Bentzen, Paul Peck,

Harry Moore, Elaine Zieroth, Bernard Wein-

gardt, and Cheri Bashor on all claims brought

against them.

The clerk of the court is directed to

enter an amended judgment as described above.

Done this 25th day of November, 1987,

in Denver Colorado.

BY THE COURT:

Sherman G. Finesilver,Chief Judge

United States District Court

-l-

56

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MYRON CHERRY,

Plaintiff-Appellant, No.88-1096

COUNTY OF LA PLATA,State of Co,

Oe Oh a

)

)

)

)

v. )

)

)

)

)

)

ORDER

Filed January 4, 1990

Before McKAY, SEYMOUR and TACHA, Circuit

Judges.

The sentiueah died eae on for

consideration of appellant's petition for

rehearing with oral argument.

Upon consideration whereof, appellant's

petition for rehearing with oral argument is

denied.

Entered for the Court

ROBERT L. HOECKER, CLERK

57

CONSTITUTIONAL PROVISIONS AND STATUTES:

UNITED STATES CONSTITUTION

Article I Section 10

"No State shall .. . pass any... Law

impairing the Obligation of Contracts

Amendment IV

“The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated

Amendment VII

“In suits at common law, where the value

in controversy shall exceed twenty

dollars, the right of trial by jury

shall be preserved =

Amendment XIV Section 1

42 UNITED

; No State shall make or enforce

any law which shall abridge the privi-

leges or immunities of citizens of the

United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law;

nor deny to any person within its juris-

diction the equal protection of the

laws."

STATES CODE SECTION 1983. Civil action

for deprivation of rights

“Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or

the District of Columbia, subjects, or

causes to be subjected, any citizen of

the United States or other person within

the jurisdiction thereof to the depriva-

tion of any rights, privileges, or

58

immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress =

42 UNITED STATES CODE SECTION 1985. Ccnspir-

acy to interfere with civil rights

(2) " . . . or if two or more persons

conspire for the purpose of impeding,

hindering, obstructing, or defeating, in

any manner, the due course of justice in

any State of Territory, with intent to

deny any citizen the equal protection of

the laws, os

(3)" I£ two or more persons in any State

or Territory conspire or go in disguise

on the highway or on the premises of

another, for the purpose of depriving,

either directly or indirectly, any

person or class of persons of the equal

protection of the laws, or of equal

privileges and immunities under the

laws; or for the purpose of preventing

or hindering the constituted authorities

of any State or Territory from giving or

securing to all persons within such

State or Territory the equal protection

of the laws; Bs

a, in any case of conspiracy set

forth in this section, if one or more

persons engaged therein do, or cause to

be done, any act in furtherance of the

object of such conspiracy, whereby

another is injured in his person or

property, or deprived of having and

exercising any right or privilege of a

citizen of the United States, the party

so injured or deprived may have an

action for the recovery of damages

occasioned by such injury or depriva-

tion, against any one or more of the

conspirators.”

59

30 UNITED STATES CODE SECTION 2la. National

mining and minerals policy; definition

of minerals; execution of policy under

other authorized programs; report to

Congress

"The Congress declares that it is the

continuing policy of the Federal Govern-

ment in the national interest to foster

and encourage private enterprise in (1)

the development of economically sound

and stable domestic mining, minerals,

metal and mineral reclamation industr-

ies, (2) the orderly and economic devel-

opment of domestic mineral resources,

reserves, and reclamation of metals and

minerals to help assure satisfaction of

industrial, security and environmental

needs, . i

"It shall be the responsibility of the

Secretary of the Interior to carry out

this policy when exercising his authori-

ty under such programs as may be author-

ized by law cther than this section

"

30 UNITED STATES CODE SECTION 26. Locator's

rights of possession and enjoyment

"The locators of all mining locations

made on any mineral vein, lode, or

ledge, situated on the public domain,

their heirs and assigns, .. . shall

have the exclusive right of possession

and enjoyment of all the surface in-

cluded within the lines of their loca-

tions, ri

16 UNITED STATES CODE SECTION 475. Purposes

for which national forests may be es-

tablished and administered

"All public lands designated and reserv-

ed prior to June 4, 1897, by the Presi-

60

Pe) ir ae 6 ee et eed, eli ee an ne 0 eee | ae

dent of the United States under the

provisions of section 471 of this title,

and all public lands that may

hereafter be set aside and reserved as

national forests under said section,

shall be as far as practicable

controlled and administered in accor-

dance with the following provisions.

but it is not the purpose or intent

of these provisions, or of said section,

to authorize the inclusion therein of

lands more valuable for the mineral

therein, or for agricultural purposes,

than for forest purposes."

16 UNITED STATES CODE SECTION 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... . Nor shall anything in

such sections prohibit any person from

entering upon such national forests for

all proper and lawful purposes, includ-

ing that of prospecting, locating, and

developing the mineral resources there-

of.

16 UNITED STATES CODE SECTION 482. Mineral

lands; restoration to public domain;

location and entry

er And any mineral lands in any

national forest which have been or which

may be shown to be such, and 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 provis-

ions contained in sections 473 to 478,

479 to 482 and 551 of this title."

16 UNITED STATES CODE SECTION 528. Develop-

ment and administration of renewable

surface resources for multiple use and

<a |

sustained yield of products and ser-

vices; Congressional declaration of

policy and purpose.

"It is the policy of the Congress that

the national forests are established and

shall be administered for outdoor recre-

ation, range, timber, watershed, and

wildlife and fish purposes. .. Nothing

herein shall be construed so as to

affect the use or administration of the

mineral resources of national forest

lands or to affect the use or administr-

ation of Federal lands not within na-

tional forests."

16 UNITED STATES CODE SECTION 551. Protection

of national forests; rules and regula-

tions

"The Secretary of Agriculture shall make

provisions for the protection against

destruction by fire and depredations

upon the public forests and national

forests .. . and to preserve the for-

ests thereon from destruction

FEDERAL RULES OF CIVIL PROCEDURE,

Rule 56. Summary Judgment

"(c) Motion and Proceedings Thereon. The

motion shall be served at least 10 days

before the time fixed for the hearing.

The adverse party prior to the day of

hearing may serve opposing affidavits.

The judgment sought shall be rendered

forthwith iff the pleadings, depositions,

answers to interrogatories, and admis-

sions on file, together with the af-

fidavits, if any, show that there is no

genuine issue as to any material fact

and that the moving party is entitled to

a judgment as a matter of law. es

62

United States Forest San Juan Mancos

Department of Service National Ranger

Agriculture Forest District

P.O. Box 330, 41595 E. Hwy 160

Mancos, Colorado 81328

303-533-7716

REPLY TO: 2810

DATE: March 19, 1990

CERTIFIED MAIL - RETURN RECEIPT RE ED

Mr. Myron Cherry

Box 4213

Las Cruces, New Mexico 88003

Dear Mr. Cherry:

There is not an approved plan of operations

for your unpatented millsite claims located

in La Plata Canyon (serial numbers 162403 -

162410, Foot, Graves, New York, Missunderst-

anding, Coin, Suzy, Hughes, Cat). As you are

aware, an approved plan of operations is

required by law for operations on unpatented

mining and millsite claims on National Forest

63

land (36 C.F.R. 228.4). I have included a

blank operating plan form for your convenien-

ce, if you wish to use it. This form is not

mandatory; you may provide your own plan of

operations.

To be considered for approval, a plan of

operations must cover all reasonably foresee-

able operations proposed for the claims, and

must include the following information at a

minimum:

1. Name and legal mailing address

of operators, claimants, lessees,

assigns, or designees;

2. A ake or sketch showing the

proposed area of operations, access

roads, and the size and location

of areas to be used or disturbed;

3. Description of the type of

operations, proposed and existing

road use and construction, means

of transportation, period or timing

of activity, and environmental

protection measures.

64

In addition, a millsite claim must be located

as (1) a mill site in connection with valid

lode mining claim, (2) an independent mil]

site, or (3) a mill site in connection with

valid placer claim. Please specify the nature

of your millsite location.

If the proposed scope of operations warrants,

I am authorized to require a reclamation bond

prior to approval of your operating plan. The

amount of any such bond wil! reflect the

estimated cost of stabilizing, rehabilitat-

ing, and reclaiming the area of operations

coe C.8.m. 228.13).

Please submit your proposed plan of opera-

tions to this office within 30 days of recei-

pt of this letter. If this is not possible,

please notify me in writing as to the reason

and when I may expect the proposed plan of

operations.

Sincerely,

(Undecipherable)

Paul H. Peck

District Ranger

65

United States Forest San Juan Mancos

Department of Service National Ranger

Agriculture Forest District

P.O. Box 330, 41595 E. Hwy 160

Mancos, Colorado 81328

303-533-7716

REPLY TO: 2810

DATE: December 20, 1990

¢ AIL - RETURN RECEIPT REQUESTED

Mr. Myron Cherry

Box 4213

Las Cruces, New Mexico 88003

Dear Mr. Cherry:

On December 8, we dismantled the Hawkins

Cabin near your "Mom Lode” mine. There were

several items in the cabin that we thought

might be yours, so we removed them for

safekeeping before dismantling the cabin. The

following is a list of those items from the

cabin that are being stored at the Mancos

Ranger District office.

66

2 units of a green sectional sofa

2 yellow vinyl kitchen chairs, one

patched with duct tape

metal frame for twin bed

One box of kitchen items (cake pan,

Sauce pans, utensils, hot plate,

etc. )

If these are yours, and you would like them

back, please contact the Mancos District and

make arrangements to pick them up before

March 30, 1990.

Sincerely,

(s) Paul H. Peck

Paul H. Peck

District Ranger

67