Petition for Writ of Certiorari — Doremus v. United States

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IN THE TERESI ET et mare |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

RORY DOREMUS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition For Writ Of Certiorari

To The United States Court

Of Appeals For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

BARRY MARCUS

Marcus, Merrick & Montgomery

737 North 7th Street

Boise, Idaho 83702

(208) 342-3563

Counsel of Record

WILBUR T. NELSON

8917 Springhurst

Boise, Idaho 83704

Counsel for Petitioner

(i)

QUESTION PRESENTED

Whether criminal prosecution of an owner

of a valid unpatented mining claim, for re-

moving trees on his mining claim, violates

his constitutional right to due process

where:

(a)

(b)

(c)

(da)

(e)

The trees are removed in order to

clear his exploration site;

The right of removal is granted by

statute without having to comply

with sound principles of forest

management;

The rule of law in the Ninth Circuit

prior to this decision was that the

claim owner's statutory right pre-

cluded criminal prosecution’ for

removal of trees;

The Forest Service regulations

exempt from prosecution any act

authorized by the Federal Mining

Laws;

The Forest Service regulations

(£)

(g)

(ii)

require a determination that the

action caused unreasonable and unne-

cessary damage to surface resources

prior to criminal prosecution;

The tree removal is not prohibited

by the claim owner's approved

operating plan; and

The statute which authorized the

Forest Service to manage surface

resources on mining claims (30

U.S.C. § 612) does not prohibit tree

removal and does not authorize the

Forest Service to prohibit tree

removal.

(iii)

PARTIES TO THE PROCEEDINGS

l. Petitioner is Rory Doremus. Mr.

Doremus and his brother, David Doremus,

were defendants in the District Court, and

appellants in the Court of Appeals for the

Ninth Circuit.

2. Respondent, United States of

America, was the plaintiff in the District

Court and appellee in the Court of Appeals

for the Ninth Circuit.

(iv)

TABLE OF CONTENTS

QUESTION PRESENTED ......

PARTIES TO THE PROCEEDINGS . .

TABLE OF CONTENTS ......

TABLE OF AUTHORITIES . ... .

OPINIONS AND JUDGMENTS BELOW .

SURTONGGIGE «6 4 ee ee ee

CONSTITUTIONAL PROVISION...

STATEMENT OF THE CASE ... .

REASONS FOR GRANTING THE WRIT

Ge cs Sk ew ee ee

APPENDIX:

CIRCUIT COURT DECISION ..

ORDER DENYING REHEARING . .

MAGISTRATES DECISION. .

VIOLATION NOTICE .... .

30 USC §$ 612 ...

FOREST SERVICE MANUAL .

FOREST SERVICE REGULATIONS

DISTRICT COURT DECISION. .

PLAN OF OPERATION .... .

Ww WwW WN

(v)

TABLE OF AUTHORITIES

CASES: Page

Adamo Wrecking Co. v. United

States, 434 U.S. 275, 54 L.Ed.24

978) -e ee eee eaeeeeeeeeeeee eee 25

Boesche v. Udall, 373 U.S. 472,

10 L.Edad.2d 491 (1963) ee eee eeeeeee ll

Bouie v. City of Columbia, 378

U.S. 347, 12 L.Ed 2d 894 (1964) .. 27

California Coastal Comm'n v.

Granite Rock, 480 U.S. 572,

_ — 7 (1987) ere @ ®eeeeeeseeeee« 7

eee eeeeeeeeereeeeeeeeeeeeeeeeeeee © 8

“ee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeee ll

*eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee ®& 16

*“eeeeeeeeseeeeeeeeeeteeeeeeeeeeeeee ee & 23

Cameron v. United States, 252 U.S.

450, 64 L.Ed. 659 (1920) ......... Lil

Cole v. Ralph, 252 U.S. 286, 64

L.Ed. 567 (1920) se @eeeeeeeeeeeees#ses ll

Dixson v. United States, 465 U.S.

482, 79 L.Ed.2da 458 (1984) ....... 25

Dunn v. United States, 442 U.S.

100, 60 L.Ed.24 743 (1979) ....... 25

Groves v. Modified Retirement

Plan, 830 F.2d 109 (3rd Cir.

DP Sevedvabesbbebebseabcesesccese 26

Huddleston v. United States, 415

U.S. 814, 39 L.Ed.2d 782 (1974) .. 25

Ickes v. Virginia-Colorado

Development Co., 295 U.S. 639,

(vi)

79 L.Ed. 1627 (1935) eseeeereeeeeeeee

Jay v. Boyd, 351 U.S. 345, 100

L.Ed, 1242 (1956) oe, ewpeeeseteeeee 8 #8 &@ @ @

Lanzetta v. New Jersey, 306 U.S.

45l, 83 L.Ed. i 39) > es es @®e eee eee

Raley v. Ohio, 360 U.S. 423,

3 L.Ed.2d 1344 (1959) eeerteeeeeeee

Regan v. Time, Inc., 486 U.S. 641,

* L.Ed.2d 467 (1984) (J. Brennan

Opinion) see eve eeeeeeeeeeeveeeeeeeeee

Rewis v. United States, 401 U.S.

808, 28 L.Ed.2d 493 (1971) w...euee

Service v. Dulles, 254 U.S. 363,

1 &.BA.24 1403 (1957) wessvsveeeer

Udall v. Taliman, 380 U.S. 1, 13

L.Ed.2d 616 (1965) oee eee eeeeeeeee

U.S. v. Caruthers, 523 F.2d 1306

(9th Cir. 1975) seeeeeeeeeeeeeeeee

oe es ee eeeeeeeeeeeeeeesereeeeeeeeeeeeee

United States v. Deasy, 24 F.2d 108

(D.Ida. 1928) ee, @eeeeeesrT#etteeeskhkeeesekeekseF8 © @® &

ese e@eeeese @eeeeeeeeeeeeneeeeeeeetetetee

United States v. Harriss, 347 U.S.

612, 98 L.Ed. 989 (1954) .......25,

ese co eeeeeeeeeeeeeeeeeeeeeeeeeeee eo ®

United States v. Larinoff, 431

U.S. 864, 53 L.Ed.2d 48 (1977) ...

United States v. Laub, 385 U.S.

475, 17 L.Bd.2d 526 (1967) ....aae

oeeeeeeeeeeveeeeeseseeeeeeveeeeeeeeteeevee &

(vii)

United States v. Mersky, 361 U.S.

431, 4 L.Ed.2d 423 (1960) ........

United States v. Nelson, 5 Sawy. 68

27 Fed. Cas. 86 (D.Ore. 1878).....

U.S. v. Weiss, 642 F.2d 296 (9th

Cir.

1981)

see eeeeeeeeeeeeeeeeeeeeeneeeeeeeeeee

Vitarelli v.

Seaton, 359 U.S. 535,

3 L.Ed.2da 1012 (1959) eeeee ee ee eee

Wilbur v. United States ex rel

Krushnic, 280 U.S. 306, 74

Eva. S45 (1930) werssaverseeveer

CONSTITUTIONAL PROVISION:

Fifth Amendment........02 see eeeeees

STATUTES:

146 U.S.C. § 551 wevvvvesess po dddddD

28 U.S.C. § 1254(1) ...... pede EEDD

286 U.B.C. § AZ9l wavvavsseresessess

30 U.B.C. B&B 22 wessveee pdodddEDE DEED

30 U.B.C. § 26 wasssevevvsesseserer

30 U.B.C. § G12 wevevevvevsssessrser ‘

esp eeeeeeeeeeeeeeeee

a ll

(viii)

1955 U.S. Code Cong. and Adm. News....

REGULATIONS:

36 C.F. 8 F 800 oeeeeenereeneeneeeeeeeee

36 C.F.R. BS 220.7 22%.

36 C.F.R. § 261.1(b)

36 C.F.R. § 261.9(a)

Forest Service Manual,

and 2813.13b

Forest Service Manual,

and 2817.3 *enrneeeeeeese#ee#se#fkee#e#eee#ee#ee#e#e#e#e#e#e#*#e##e*-«

Forest Service Manual,

and 2814.24

§§ 2813.14

§ 2813.13b-2

§§ 2817.03

§§ 2811.5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

Case No.

RORY DOREMUS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition For Writ Of Certiorari

To The United States Court

Of Appeals For The Ninth Circuit

Rory Doremus petitions for a writ of

certiorari to review the Judgment of the

United States Court of Appeals for the

Ninth Circuit in this case.

OPINIONS AND JUDGMENTS BELOW

The Decision of the United States Court

of Appeals for the Ninth Circuit was

entered on October 31, 1989 and appears at

p. la of the Appendix to this Petition. It

is reported at 888 F.2d 630. The Order of

the United States Court of Appeals for the

Ninth Circuit denying Petitioner's Petition

for Rehearing was entered on May 29, 1990.

It appears at p. 30a of the Appendix to

this Petition.

The Decision of the United States Dis-

trict Court for the District of Idaho,

affirming the Magistrate's Judgment of

Conviction, was entered April 21, 1987. It

appears at p. 80a of the Appendix. The De-

cision of the District Court is reported at

658 F.Supp. 752. The Magistrate's Judgment

of Conviction, entered August 5, 1986,

appears at p. 3la of the Appendix. There is

no reported decision of the Magistrate.

JURISDICTION

The Judgment of the United States Court

of Appeals for the Ninth Circuit was

entered on October 31, 1989. Petitioner

filed a timely Petition for Rehearing,

which was denied May 29, 1990. Appendix,

p. 30a. This Petition was filed within

sixty (60) days after such denial, as per-

mitted by Supreme Court Rule 20. The

jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1). The Circuit Court of

Appeals had jurisdiction under 28 U.S.C.

§ 1291.

CONSTITUTIONAL PROVISIONS

The Fifth Amendment of the United States

Constitution provides in pertinent part:

“No person shall .. . be deprived

of life, liberty, or property,

without due process of law... "

STATEMENT OF THE CASE

Petitioner Rory Doremus, and his

brother, David Doremus, own valid unpa-

tented lode and placer mining claims

located in Nez Perce National Forest, in

central Idaho. Since 1972 they have been

conducting mining exploration and develop-

ment work upon their mining claims. The

validity of their mining claims is not in

question.

In May, 1985 their Operating Plan was

approved by the United States Forest

Service. The Operating Plan prohibited

removal of live green trees for firewood

but did not prohibit the removal of trees

under any other circumstance. The Operat-

ing Plan appears at p. 110a of the Appendix

a eat ane NS At Se Nils lt cast te

In 1985 the Forest Service charged the

Doremuses with violation of 36 C.F.R.

§ 261.9(a) (damaging a natural feature).

The violation notice appears at p. 37a of

the Appendix.

Petitioner requests review of his con-

viction for “damaging trees and surface

resources on national forest land" in

violation of 36 C.F.R. § 261.9(a). This |

charge stemmed from the removal of several

trees in order to clear an ore bearing vein

located on his claim for exploration pur-

poses. Section 261.9(a) prohibits damaging

any natural feature or other property of

the United States. The Forest Service did |

not charge Petitioner with violating his

Operating Plan as a result of the tree

removal. Nothing contained in Petitioner's

Operating Plan precluded Petitioner from

removing trees for exploration purposes.

There is no evidence that the removal

caused unreasonable or unnecessary damage

to surface resources. The government merely

proved that the trees were pushed over and

the Operating Plan did not expressly

authorize the removal. Section 261.1(b) of

the regulations exempts from prosecution

any act which is authorized by the "United

States Mining Laws Act of 1872, as amended."

On Appeal, the Ninth Circuit affirmed

Petitioner's conviction. It held that Peti-

tioner's removal of trees on his valid

Claim was not an activity "authorized by

Federal law" and thus was not exempted from

criminal prosecution under 36 C.F.R.

§ 261.1(b). The Court held that the Federal

law, including 30 U.S.C. § 612(c), did not

permit a claim owner to remove trees from

his claim for any purpose, in the absence

of prior approval of the Forest Service.

Section 612(c) of Title 30, on its face,

grants a claim owner the authority to

remove timber from his claim for clearance

purposes. Prior to this case, the Ninth

Circuit had held that § 612(c) authorized

removal of timber if required for develop-

ment of the claim. U.S. v. Caruthers, 523

F.2d 1306 (9th Cir. 1975). In that case,

which was the rule of law in the Ninth

Circuit prior to this case, the Court found

that the authority granted to the claim

owner by § 612 precluded his criminal con-

viction for removal of the trees from his

claim. The statute and regulations appear

in the Appendix at p. 40a and p. 70a.

REASONS FOR GRANTING THE WRIT

This case involves important issues of

Federal law pertaining to the use of valid

mining claims located in national forests.

The Federal Mining Law grants’ certain

rights to the owner of a valid mining

claim, including the right to remove timber

for clearance of the claim in order to con-

duct mining and prospecting operations. 30

U.S.C. § 612. The same statute grants

authority to the Forest Service to manage

the vegetative surface resources within a

mining claim, so long as such does not

materially interfere with the claim owner's

mining and prospecting uses. This dual

authority requires a delicate balancing of

important federal policies. On the one

hand, Congress has instructed the Forest

Service to protect our national forests. On

the other hand, Congress has declared that

the development of mineral resources on

public land is of high national priority

and has reaffirmed the importance of pri-

vate development through the mineral loca-

tion laws. California Coastal Comm'n v.

Granite Rock, 480 U.S. 572, 94 L.Ed.2d 577

at 601; U.S. v. Weiss, 642 F.2d 296 at 299

(9th Cir. 1981). This case is the first

case to present a direct conflict between

the Forest Service's management of vegeta-

tive surface resources on a mining claim

and the claim owner's development of the

mineral resources. The conflict is brought

into sharp focus by the following facts:

(a) The claim owner is authorized by

Congress to remove’ timber for

Clearance purposes without having

to comply with sound principles of

forest management;

(b) The Forest Service is authorized to

manage the vegetative surface

resources on the mining claim;

the damaging of any natural feature

a crime;

(d) Prospecting and mining activities,

and especially tree removal,

necessarily result in damage to a

natural feature;

(e) The Forest Service requires’ the

claim owner to obtain an approved

plan of operation prior to engaging

in any activity which significantly

disturbs the surface of the claim;

(£) Mining and prospecting activities,

and especially tree removal, do

necessarily result in significant

surface disturbance; and

(g) The Circuit Court decision creates

criminal liability whenever a min-

ing claimant engages in a prospect-

ing or mining activity which is not

expressly defined and approved in

the Operating Plan.

The Circuit Court's decision has, for all

practical purposes, eliminated the deli-

cate balance, previously struck by 100

years of Congressional enactment and judi-

cial interpretation, between mineral deve-

lopment and national forest preservation.

It is submitted that Congress and not the

Courts should alter the present balance

between these important national policies.

II.

It is essential that the Court review

this case in order to correct an erroneous

interpretation of a federal statute that is

an important element of our national policy

regarding the development oof mineral

resources. Petitioner was prosecuted for

damaging a natural feature. 36 C.F.R.

§ 261.9(a). The damage resulted from his

removal of trees to clear away the ore

bearing vein he wished to explore. If the

tree removal was authorized by "the U.S.

Mining Laws Act of 1872, as amended", it

was exempted from prosecution. 36 C.F.R.

§ 261.1(b). The 1872 Mining Law, including

30 U.S.C. § 612, confer certain rights upon

the owner of a valid unpatented mining

claim, in the nature of a grant from the

United States. 30 U.S.C. §§ 22 and 26.

Wilbur v. United States ex rel Krushnic,

280 U.S. 306, 74 L.Ed. 445; Ickes v.

Virginia-Colorado Development Co., 295 U.S.

639, 79 L.Ed. 1627; Boesche v. Udall, 373

U.S. 472, 10 L.Ed.2d 491; Cole v. Ralph,

252 U.S. 286, 64 L.Ed. 567; Cameron v.

United States, 252 U.S. 450, 64 L.Ed. 659;

California Coastal Comm'n v. Granite Rock,

480 U.S. 572, 94 L.E&@.2d 577. This grant

from the United States includes the right

to remove timber located on the claim for

uses reasonably incident to the claim

owner's mining, development or exploration

activities. United States v. Deasy, 24

F.2d 108 (Idaho 1928). The claim owner is

authorized by the grant to cut down and

destroy trees located on the claim if such

is reasonably necessary in order to carry

on his prospecting and mining activities,

United States v. Nelson, 5 Sawy 68 (Ore.

1878), 27 Fed. Case No. 15,864. The

Surface Resource Act of 1955 (30 U.S.C.

§ 612) was enacted to "make clear to loca-

tors what can and what cannot be done” with

respect to the surface of their claims,

1955 U.S. Code Cong. and Adm. News, p.

2479. The purpose of the Act was to define

the rights of locators of mining claims to

surface resources prior to patent:

"In short, this subsection recognizes

essential rights-mining claims can, in

the future, be used for activities

related to prospecting, mining, pro-

cessing and related activities, though

not for unrelated activities." 1955

U.S. Code Cong. and Adm. News, p. 24862.

"This language, carefully developed,

emphasizes that committee's insistence

that this legislation not have the

effect of modifying long standing essen-

tial rights springing from location of a

mining claim." 1955 Code Cong. and Adm.

News, p. 2483. (Emphasis added)

The clear congressional intent was to

restate in § 612 those rights the claim

owner already had with respect to surface

resources within his claim. If the claim

owner is entitled to conduct an activity on

his claim by reason of 30 U.S.C. § 612, he

is authorized to do so by the 1872 Mining

Law. Section 612 provides, in part:

"Any severance or removal of timber

which is permitted under the exception

of the preceeding sentence, other than

severance or removal to provide

clearance, shall be in accordance with

sound principles of forest management."

30 U.S.C. § 612(c). (Emphasis added)

Congress intended that the "preceding sen-

tence" permit or "authorize" the severance

or removal of timber from the claim. The

“preceding sentence" of § 612(c) states

this exception:

"Except to the extent required for the

mining claimants prospecting, mining or

processing operations and uses reason-

ably incident thereto, or for the con-

struction of buildings or structures in

connection therewith, or to provide

Clearance for such operations or uses,

or to the extent authorized by the

U.S. . . . " (Emphasis added)

The meaning of this subsection is clear on

its face. A claim owner is authorized to

sever and remove timber from his claim,

without adhering to sound principles of

forest management, if such is required to

provide clearance for his prospecting,

mining or processing operations or uses

reasonably incident thereto. There can be

no question about the authority granted

under this statute.

In 1975 the Ninth Circuit held that the

miner's authority under § 612 precluded

prosecution for cutting trees on defen-

dant's claims. U.S. v. Caruthers, 523 F.2d

1306 (9th Cir. 1975). This has been the

rule of law since 1872 and is Forest

Service Policy. Forest Service Manual,

§§ 2813.14 and 2813.13b. |

The authority granted to the claim owner

in § 612 is independent of any authoriza-

tion the Forest Service may grant to cut

timber, pursuant to its management of the

surface resources. Were this not the case

the clause “or to the extent authorized by

the U.S." contained in § 612(c) would be

superfluous. Petitioner was authorized by

the Federal Mining Laws to remove the trees

in question and thus exempted from prosecu-

tion under 36 C.F.R. § 261.1(b). In this

respect the statute is self executing.

The Circuit Court erroneously reasoned

that since § 612 authorized the Forest

Service to manage the surface resources

within a mining claim located after 1955

and Part 228 of the regulations requires an

operating plan; that, therefore, only those

acts that were expressly approved by the

Forest Service in the operating plan were

“authorized by the U.S. Mining Laws Act of

1872, as amended". The fallacy of this

reasoning is apparent. Section 612

authorizes both the claimant's removal of

timber and the Forest Service's management

of vegetative surface resources. These two.

authorities are coexistent but separate.

The Forest Service regulations are not part

of the "U.S. Mining Laws Act of 1872, as

amended". They were promulgated under 16

U.S.C. § 551, enacted in 1897. California

Coastal Comm'n v. Granite Rock, supra.

Therefore, the regulations cannot be the

source of the authority referred to in

§ 261.1(b) of the regulations. In the case

of removal of timber for clearance pur-

poses, there is very little latitude for

surface resource management. The claimant

may chose to totally destroy the trees in

the course of their removal, since he does

not have to follow sound principles of

forest management. Since Doremus had the

right to remove the trees for clearance

without complying with sound principles of

forest management, there was no environmen-

tal regulation which the Forest Service

could impose in the Operating Plan and

hence no reason for its inclusion in the

plan. Any prohibition of such removal would

have been out of harmony with the statute

and a mere nullity. United States v.

Larinoff, 431 U.S. 864, 53 L.Ed.2d 48.

Therefore, the fact that such removal is

not specifically addressed in the Plan is

of no significance.

The Circuit Court's reasoning is closely

analogous to the Government's argument for

conviction in United States v. Laub, 385

U.S. 475, 17 L.Ed.2d 526 (1967). The Court

rejected the argument holding that the sta-

tute which granted the agency's authority

to regulate did not authorize the agency to

prohibit the act in question. Moreover,

the regulations relied upon did not purport

to make the conduct in question illegal.

In this case § 612 grants general authority

to the Forest Service to manage the vegeta-

tive surface resources. It does not

authorize the Forest Service to prohibit

tree removal. The regulations dealing with

mining, Part 228, do not purport to prohi-

bit tree removal. In fact, they authorize

it. As in Laub, the regulations are cast

exclusively in civil terms. The Circuit

Court had to create the crime in this case

by inference. First, it inferred from the

management authority conferred in § 612,

that the Forest Service had the power to

prohibit tree removal. Second, it inferred

from an absence of approval in the Operat-

ing Plan that tree removal was unreasonable

and, thus prohibited. The Court in Laub

flatly rejected this approach to criminal

justice:

"Crimes are not to be created by

inference. They may not be constructed

nunc pro tunc. Ordinarily, citizens may

not be punished for actions undertaken

in good faith reliance upon authorita-

tive assurance that punishment will not

attach. As this Court said in Raley v.

Ohio, 360 U.S. 423, 438, 3 L.Ed.2d 1344,

1355, 79 S.Ct. 1257, we may not convict

‘a citizen for exercising a privilege

which the State clearly had told him was

available to him.' As Raley emphasized,

criminal sanctions are not supportable

if they are to be imposed under ‘vague

and undefined commands ...+; or if

they are ‘inexplicably contradictory’ .

- «? and certainly not if the Govern-

ment's conduct constitutes active

misleading’ ... ." 17 L.Ed.2d 534.

Section 261.1(b) of the regulations was

intended to insure that the agency's mana-

gement of the surface resources within a

valid mining claim not conflict with the

Statutory rights of the claim owner. The

interplay between the claim owner's statu-

tory rights and the agency's management of

surface resources was addressed in United

States v. Weiss, 642 F.2d 296 (9th Cir.

1981):

"We believe that the important

interests involved here were intended to

and can co-exist. The Secretary of

Agriculture has been given the respon-

sibility and the power to maintain and

protect our national forests and land

therein. While prospecting, locating

and developing of mineral resources of

the national forests may not be prohi-

bited nor so unreasonably circumscribed

as to amount to ae prohibition, the

Secretary may adopt reasonable rules and

regulations which do not impermissably

encroach upon the right to the use and

enjoyment of placer claims for mining

purposes." 642 F.2d 299.

III.

The Court's review of this case is

essential for another reason. The Circuit

Court decision misinterprets the adopted

policy and regulations. of the Forest

Service. The clear policy of the Forest

Service is to regulate the vegetative sur-

face resources on a mining claim in such a

way as to avoid any interference with exer-

cise of the claim owner's rights under the

Federal Mining Laws. The regulatory scheme

adopted by the agency provides extensive

procedural and substantive safeguards to

insure that a mining claimant is not prose-

cuted for reasonable mining and prospecting

activities and to insure that criminal pro-

secution is a compliance measure of last

resort, even if the mining claimant is

engaged in activities which are not

required for mining or prospecting pur-

poses:

(1) Any activity which is authorized by

(2)

(3)

(4)

the U.S. Mining Laws Act of 1872, as

amended, is exempted from prose-

cution. 36 C.F.R. § 261.1(b).

Forest Service policy is to recog-

nize the claim owner's right, under

the Federal Mining Laws, to cut

timber on his claims. Forest Service

Manual, § 2813.13b-2.

A notice of non-compliance for

violation of an operating plan can

be issued only if the non-compliance

is unnecessarily or unreasonably

causing damage to surface resources.

36 C.R.F. § 228.7.

Forest Service policy is to serve a

notice of non-compliance or pursue

criminal prosecution only if the

non-compliance unreasonably or unne-

cessarily causes damage to surface

resources and reasonable attempts to

obtain voluntary compliance have

failed. Forest Service Manual,

§§ 2817.03 and 2817.3.

(5) Forest Service policy is to encour-

age prospecting and mining and

refrain from unduly hampering these

activities. Forest Service Manual,

§§ 2811.5 and 2814.24.

The Forest Service Manual states Forest

Service policy. California Coastal Comm'm

v. Granite Rock, supra, 94 L.Ed.2d at

p.603; 36 C.F.R. § 200. The Circuit Court

erred by failing to give effect to the

total body of regulations and policy per-

taining to management of surface resources

within mining claims. United States v.

Larinoff, 431 U.S. 864, 53 L.Ed.2d 48;

Udall v. Tallman, 380 U.S. 1, 13 L.Ed.2d

616; Jay v. Boyd, 351 U.S. 345, 100 L.Ed.

1242.

The procedural and substantive protec-

tions afforded to the claim owner by the

Forest Service regulations must be adhered

to by the Forest Service. They provide for

the defendant's intent and for protection

of his statutory rights. They are important

elements of Petitioner's right to due pro-

cess in this case. Vitarelli v. Seaton, 359

U.S. 535, 3 L.Ed.2d 1012 (1959); Service

v. Dulles, 254 U.S. 363, 1 L.Ed.2d 1403

(1957). The Circuit Court's decision

deprived defendant of these safeguards.

IV.

The Court's review of this case is

further required because the Circuit

Court's decision v olates Petitioner's

right to due process. The decision is con-

trary to Supreme Court decisions which

establish applicable constitutional limi-

tations on Petitioner's prosecution in this

case.

This Court has required application of

the rule of lenity when the ambit of crimi-

nal conduct is uncertain. The rule of

lenity is rooted in fundamental principles

of due process, which mandate that no indi-

vidual be forced to speculate, at peril of

indictment, whether his conduct is prohibi-

ted; and that to insure that an agency

speaks with special clarity when marking

the boundaries of criminal conduct, courts

must decline to impose punishment for

actions that are not clearly and unmista-

kably proscribed. Dunn v. United States,

442 U.S. i00, 60 L.Ed.2d 743 (1979). The

rule of lenity compels construction of the

statute in favor of the criminal defen-

dants. Dixson v. United States, 465 U.S.

482, 79 L.Ed.2d 458; Rewis v. United

States, 401 U.S. 808, 28 L.Ed.2d 493;

Huddleston v. United States, 415 U.S. 814,

830-31, 39 L.Ed.2d 782 (1974). The rule of

lenity applies with equal force to the

interpretation of criminal regulations.

United States v. Mersky, 361 U.S. 431, 4

L.Ed.2d 423 (1960); Adamo Wrecking Co. v.

United States, 434 U.S. 275, 54 L.Ed.2d 538

(1978). The Circuit Court erred in

eS I a RN

refusing to apply the rule of lenity to

Doremus' conviction. Groves v. Modified

Retirement Plan, 830 F.2d 109 (3rd Cir.

1986).

The Circuit Court decision holds that

any activity or effect not defined and

approved in the plan of operation is

necessarily prohibited and criminal. The

concept that an activity, otherwise lawful,

is criminally prohibited unless affir-

matively authorized by the agency comple-

tely fails to give notice of the acts

prohibited. Lanzetta v. New Jersey, 306 |

U.S. 451, 453 (1939); United States v. |

Harriss, 347 U.S. 612, 617. As a conse- |

quence, the agency has the power to impose

criminal liability arbitrarily. Regan v. |

Time, Inc., 104 8.Ct. 3262, 3284 (J. |

Brennan Opinion). The operating plan was

elevated by the Circuit Court to the posi-

tion of a statute or regulation for pur-

poses of criminal prosecution. It failed to

give reasonable notice to Petitioner of the

proscribed conduct (i.e. tree removal)

Since it failed to address the conduct at

all, and thus failed to satisfy the consti-

tutional due process requirement of defini-

teness. United States v. Harriss, supra.

Closely related to the requirement of

definiteness is the due process requirement

that a new and different statutory

construction may not be applied retroac-

tively to "a time when the conduct was not

fairly stated to be criminal”. Bouie v.

City of Columbia, 378 U.S. 347, 362 (1964).

Pre-existing mining law, including U.S. v.

Caruthers, supra, U.S. v. Deasy, supra,

U.S. v. Nelson, supra, 30 U.S.C. § 612, as

well as Part 228 and § 261.1(b) of the

Forest Service regulations and Forest

Service policy stated in the Forest Service

Manual, gave no warning at all to Petition-

er that removal of trees during the course

of his exploration activities would subject

him to criminal liability. Prior to this

case, the rule of law in the Ninth Circuit

was that the claim owner had a statutory

right to remove timber which precluded cri-

minal prosecution. Caruthers v. United

States, supra. The government's promulga-

tion of § 261.1(b) and stated policy

recognizing the miner's right to remove

timber actively reinforced Petitioner's

belief that his removal of trees was not

criminal. As in Bouie, Petitioner's convic-

tion violates due process.

CONCLUSION

The Petition for Writ of Certiorari

should be granted and the Judgment below

should be reversed.

Respectfully submitted,

(4 Sadan OS ICUS

Barry Marcu

Marcus, Merrick & Montgomery

737 North 7th Street

Boise, Idaho 83702

(208) 342-3563

Counsel of Record

Wilbur T. Nelson

8917 Springhurst

Boise, Idaho 83704

Counsel for Petitioner

APPENDIX A

SPECIAL EARTHQUAKE NOTICE

This opinion is being filed while the

Clerk's office in San Francisco is closed

due to severe earthquake damage. Once the

Clerk's office is operational, notices will

be placed in legal newspapers throughout

the Circuit. At that time parties may seek

additional time to file a petition for

rehearing if they desire to file one.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

)

United States of America, )

)

Plaintiff-Appellee, ) No. 87-3831

Vv. D.C. NO.

MISC-3025-HLR

DOREMUS,

)

RORY DOREMUS AND DAVID )

) OPINION

)

Defendants-Appellants.

Appeal from the United States District

Court for the District of Idaho

Harold L. Ryan, District Judge, Presiding

Argued and Submitted

July 12, 1988 - Seattle, Washington

Filed October 31, 1989

Before: Cecil F. Poole, William C. Canby,

Jr. and Edward Leavy, Circuit Judges.

Opinion by Judge Poole

SUMMARY

Mines and Minerals

Affirming the district court's judgment

of conviction, the court held that the

requirement of prior approval does not

endanger oor materially interfere with

mining operations.

Appellant brothers Rory and David

Doremus have staked mining claims in the

Nez Perce National Forest in Idaho, and

since 1972, have conducted mining opera-

tions under operating plans approved by the

Forest Service. In 1985, the operating plan

at issue was executed by Rory Doremus and

the District Ranger for the Red River

Ranger District. Between July 23 and July

31, 1985, Forest Service representatives

visited the site and observed more than 30

open trenches crisscrossing more than 1}

acres. Several trees had been pushed over,

and a road constructed through the trees.

Violation notices were issued, and appel-

lants were tried before a federal magis-

trate. The magistrate issued a memorandum

opinion denying apellants' motion to

dismiss and finding them guilty beyond a

reasonable doubt. The district court

affirmed their convictions.

[1] Appellants contended that their

activities were authorized by statute, 36

C.F.R. § 261.1(b)(1987), and that therefore

the regulations do not prohibit such

activities. [2] The court rejected appel-

lants' argument that the effect of this

regulation is to exempt mining operations

from the general prohibitions of Part 261,

thereby limiting the regulation of mining

operations to 36 C.F.R. Part 228. Part 228

does not contain any independent enforce-

ments, providing only that an operator be

given a notice of non-compliance and an

opportunity to correct the problem. [3]

Appellants argued also that even if Part

261 applies to them, the Forest Service is

barred from prohibiting any conduct that

was reasonably incident to their mining

operation. The district court held that the

operating plan itself becomes the defini-

tion of what is reasonable conduct and

therefore any violation of the operating

plan was per se unreasonable under the sta-~

tute. The district court also held that the

regulations did not conflict with 30 U.S.C.

§ 612 because the regulatory right is

limited so as not to endanger or materially

interfere with mining operations. [4] The

court agreed with the district court that

the regulation is consistent with the

mining laws. The regulatory scheme of

requiring a notice of intent to operate and

approval of an operating plan is a reason-

able method of administering the statutory

balance between the important interests

involved here which were intended to and

can co-exist. [5] Appellant's claim that

the operating plan is ambiguous is without

ee ee ee ee eee

ee ee

merit. The plan is not only not vague, but

is defined with numerical precision. No

reasonable person could construe the plan

as allowing more than 30 trenches to be

open simultaneously. [6] Section 612 does

not authorize mining operators to act

without Forest Service approval, and the

operating plan did not authorize the

cutting of live trees. It does not give

appellants a blanket license to remove live

trees in any manner and quantity they

believe to be reasonable. The court

concluded that section 261.9(a) is not

unconstitutionally vague as applied.

OPINION

POOLE, Circuit Judge:

Appellants Rory and David Doremus were

convicted of violating United States Forest

Service regulations which prohibit "[d]amag-

ing any natural feature or other property

of the United States" (36 C.F.R. § 261.9(a)

(1987)) and “[vJiolating any term or con-

dition of...{an] approved operating plan"

(36 C.F.R. § 261.10(k)(1987)). On appeal,

appellants contend that their activity was

permissible as "reasonably incident" to

their mining operation (see 30 U.S.C. §612

(1982)) and that the regulations are

unconstitutionally vague. We affirm.

FACTS AND PROCEEDINGS BELOW

Appellants are brothers who have staked

mining claims in the Red River Ranger

District of the Nez Perce National Forest

in central Idaho. Since 1972, appellants

have conducted mining operations on these

claims under operating plans approved by

the Forest Service.

On May 13, 1985, the operating plan at

issue was executed by Rory Doremus and

Jerry Dombrovske, District Ranger for the

Red River Ranger District. Paragraph IV of

the plan provides that "(t]he area of

exploration will be concentrated to the

clear cut," and that "[n]o more than five

trenches will be open at one time." The

magistrate found that the latter provision

was proposed by the appellants. The plan

also prohibited the cutting of live, green

trees for firewood and provided that "[ilf

timber is needed operator is asked to cut

small dead timber." The plan neither

expressly authorized nor expressly prohi-

bited the removal of live trees in con-

ducting the mining operation.

| Between July 23 and July 31, 1985,

Forest Service representatives visited the

site and observed more than 30 open

trenches, some larger than 10 feet by 30

feet, crisscrossing more than 1} acres.l

Several trees had been pushed over, and a

road had been constructed through the trees

on one side of the claim. Violation notices

were issued, and appellants were tried

before a federal magistrate on March 14,

1986. On June 18, 1986, the magistrate

issued a Memorandum opinion denying the

Doremuses' motion to dismiss and findina

them guilty beyond a reasonable doubt. The

Doremuses appealed to the district court,

which affirmed their convictions. United

States v. Doremus, 658 F.Supp., 752

(D.Idaho 1987).

STANDARD OF REVIEW

The questions presented involve the

construction of federal law and its appli-

cation to essentially undisputed facts, and

therefore they are reviewed de novo. United

States v. McConney, 728 F.2d 1195, 1201-02

(9th Cir.,)(en banc), cert. denied, 469

U.S. 824 (1984). The factual findings of

the magistrate will not be overturned

unless they are clearly erroneous. United

States v. Nance, 666 F.2d 353, 356 (9th

Cir.), cert. denied, 456 U.S. 918 (1982).

DISCUSSION

I. STATUTORY CHALLENGES

A. Applicability of Regulations

{1] Appellants’ first argument is that

they are exempted from the prohibitions of

36 C.F.R. Part 261 by the provision which

states:

Nothing in this part shall preclude

activities as authorized by...the U.S.

Mining Laws Act of 1872 as amended.

36 C.F.R. § 261.1(b)(1987). Appellants con-

tend that their activities were authorized

by statute and that therefore the regula-

tions do not prohibit such activities.

Appellants' statutory rights derive from

the provision in the 1872 Act which reser-

ves to the claimant "the exclusive right of

possession and enjoyment of all the surface

included within the lines of their loca-

tions." 30 U.S.C. § 26(1982). This right

was limited by the Surface Resources and

Multiple Use Act of 1955, which reserved to

the United States the right to manage and

dispose of surface resources on unpatented

mining claims; however, the 1955 Act provi-

10a

des that such use shall not “endanger or

materially interfere with prospecting,

mining or processing operations or uses

reasonably incident thereto." 30 U.S.C.

§ 612(b)(1982). The same statute also pro-

hibits the removal of vegetative surface

resources "[e]xcept to the extent required

for the mining Claimant's prospecting,

mining or processing operations and uses

reasonably incident thereto,...or to pro=

vide clearance for such operations ofr

uses." 30 U.S.C. § 612(c).

[2] Appellants argue that the effect of

36 C.F.R. § 261.1(b) is to exempt mining

operations from the general prohibitions of

Part 261, thereby limiting the regulation

of mining operations to 36 C.F.R. Part 228.

We reject this argument. Part 228 does not

contain any independent enforcement provi-=

Sions; it only provides that an operator

must be given a notice of non-compliance

and an opportunity to correct the problem.

lla

36 C.F.R. § 228.7(b)(1987). The references

to operating plans in § 261.10 would be

meaningless unless Part 261 were construed

to apply to mining operations, since that

is the only conduct for which operating

plans are required under Part 228. In addi-=

tion, 16 U.S.C. § 478(1982), which authori-

zes entry into national forests for "all

proper and lawful purposes, including that

of prospecting, locating, and developing

the mineral resources thereof," specifi-

cally states that "[s]uch persons must

comply with the rules and regulations

covering such national forests." This sta-

tutory caveat encompasses all rules and

regulations, not just those (such as Part

228) which apply exclusively to mining

Claimants. In this context, § 261.1(b) is

merely a recognition that mining operations

“may not be prohibited nor so unreasonably

circumscribed as to amount to a prohibi-

tion." United States v. Weiss, 642 F.2d

l2a

296, 299 (9th Cir. 1981).

B. Validity of Regulations

[3] Next, appellants argue that even if

Part 261 applies to them, the Forest

Service is barred by 30 U.S.C. § 612 from

prohibiting any conduct unless it proves

that the conduct was not “reasonably inci-

dent" to their mining operation. The dis-

trict court rejected this argument, holding

that “the operating plan itself becomes the

definition of what is reasonable and signi-

ficant conduct under the circumstances,"

and that therefore any violation of the

Operating plan was per se unreasonable

under the statute. 658 F.Supp. at 755. The

district court also held that the regula-

tions did not conflict with 30 U.S.C. § 612

because “thle) regulatory right is limited

so as not to endanger or materially inter-

fere with mining operations." Id. at 756,

citing United States v. Richardson, 599

F.2d 290 (9th Cir. 1979), cert. denied, 444

l3a

U.S. 1014 (1980).

[4] We agree with the district court

that 36 C.F.R. § 261.10(k) is consistent

with the mining laws. The regulatory scheme

of requiring a notice of intent to operate

and approval of an operating plan is a

reasonable method of administering the sta-

tutory balance between “the important

interest involved here [which] were

intended to and can coexist." Weiss, 642

F.2d at 299. The purpose of requiring prior

approval is to resolve disputes concerning

the statutory balance before operations are

begun, not after. If the appellants were

unsatisfied with the conditions of the

plan, they could have appealed to the

Regional Forester under 36 C.F.R.

§ 228.14(1987). His decision would then be

subject to review under the Administrative

Procedure Act. See 5 U.S.C. §§ 701 et seq.

(1982); cf. Savin v. Butz, 515 F.2d 1061,

1065 (10th Cir. 1975) (recognizing juris-

l4a

diction under APA to review denial of spe-

cial use permit). David Doremus admitted in

his opening brief that appellants

recognized that an appeal was a possible

course of action and deliberately chose to

forego it. David Doremus‘' Opening Brief at

23.2 Having failed to appeal the plan,

appellants may not now complain that the

restriction limiting appellants to five

open trenches was “unreasonable.” See

United States v. Brunskill, 792 F.2d 938,

941 (9th Cir. 1986) (refusing to consider

merits of operating plan where defendants

did not appeal rejection of proposed plan);

cf. United States v. Curtis-Nevada Mines,

Inc., 611 F.2d 1277, 1286 (9th Cir. 1980)

(enjoining claimant from prohibiting public

recreational use on his claim; noting that

Claimant could protest to federal agency

and, if unsatisfied, bring lawsuit).

We also agree that 36 C.F.R. § 261.9(a)

does not conflict with the mining laws.

15a

This provision is subject to § 261.1(bi),

which incorporates appellants' statutory

rights under 30 U.S.C. § 612. However,

although appellants have a right to dispose

of vegetative resources where such disposal

is “reasonably incident" to their mining

operation, they may not exercise that

right without first obtaining approval of

their operation in the manner specified in

36 C.F.R. Part 228. If appellants believed

that their operation required the removal

of trees and that the plan failed to acco-

modate that need, their remedy was to

appeal the plan prior to commencing opera-

tions. Appellants may not blithely ignore

Forest Service regulations and argue after-

ward that their conduct was reasonable."

Appellants argue, however, that

Richardson holds that the government must

show that their conduct was unreasonable in

order to prohibit it. We disagree. In

Richardson, the government filed a civil

l6a

action to enjoin the Richardsons’ from

blasting and bulldozing on their mining

claims and to require restoration of the

surface. The court specifically noted that

although “the Secretary of Agriculture has

-.. authority under sections 478 and 551 of

Title 16 to promulgate regulations con-

cerning the methods of prospecting and

mining in national forests;... [n]Jo such

regulations were in effect before this

lawsuit was commenced." 599 F.2d at 292.

In the absence of any regulatory guidance,

the court looked directly to 30 U.S.C.

§ 612 to determine whether the Richardsons'

activities were "reasonably incident” to

their mining operation. Thus, Richardson

held that the Forest Service could enjoin

unreasonable mining opereticde even in the

absence of specific regulations. Richard-

son did not hold that the Service could not

enforce a reasonable regulatory scheme

requiring mining operators to receive prior

17a

approval before beginning work.

We conclude that the requirement of

prior approval does not “endanger or

materially interfere with" appellants’

mining operations, and that the regulations

at issue are therefore eonatetent with 30

U.S.C. § 612.3

II. CONSTITUTIONAL CHALLENGE

A statute is void for vagueness if it

fails to give adequate notice to people of

ordinary intelligence concerning the con-

duct it proscribes, or if it invites

arbitrary and discriminatory enforcement.

Schwartzmiller v. Gardner, 752 F.2d 1341,

1345 (9th Cir. 1984). "The threshold

question in any vagueness challenge is

whether to scrutinize the statute for into-

lerable vagueness on its face or whether to

do so only as the statue is applied in the

particular case." Id. at 1346.

Where the statute or regulation does not

implicate constitutionally protected con-

18a

duct, a facial challenge will succeed "only

if the enactment is impermissibly vague in

all of its applications." Village of

Hoffman Estates v. The Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494-95 (1982).

In such a case, “[a]) plaintiff who engages

in some conduct which is clearly proscribed

cannot complain of the vagueness of the law

as applied to the conduct of others. A

court should therefore examine the

complainant's conduct before analyzing

other hypotherical appliations of the law.”

Id. at 495; see also id. at 500 ("Flip-

side's ficial challenge fails because ...

the ordinance is sufficiently clear as

applied to Flipside.") (emphasis added).

In this case, it is eheus that no

constitutionally protected conduct is

implicated, nor is the statute so vague as

to specify “no standard of conduct at all.”

See United States v. Westbrook, 817 F.2d

529, 531-32 (9th Cir. 1987); Schwartz-

19a

miller, 752 F.2d at 1348. Therefore, we

need only consider whether the regulations

are vague as applied. United States v.

Hogue, 752 F.2d 1503, 1504 (9th Cir.

1985).

A. 36 C.F.R. § 261.10(k)

[5] This regulation prohibits "[vJiolat-

ing any term or condition of a special-use

authorization, contract or approved operat-

ing plan." Appellants' claim that’ the

operating plan is ambiguous is without

merit. Paragraph IV-A of the plan provides:

No more than five trenches will be open

at one time. However, if a test trench

is found to contain mineral value it may

be left open to use as a discovery pit.

Only one discovery pit per claim will be

left open at a time. Discovery pits are

excluded as trenches.

The meaning of this provision is crystal

Clear. The plan, which covers all opera-

tions pertaining to six listed claims,

20a

imposes an overall limit of five open

trenches for the entire area of explora-

tion. It also allows one ones discovery pit

(not counted as a trench) for each of the

six claims. The provision is not only not

vague, it is defined with numerical preci-

sion. No reasonable person could construe

the plan as allowing more than thirty

trenches open simultaneously.

Again, however, appellants rely on 36

C.F.R. § 261.1(b), which states’ that

"[nlothing in this part shall preclude

activities as authorized by...the U.S.

Mining Laws Act of 1872 as amended." Their

contention is that a reasonable person of

ordinary intelligence would have believed

that he could exceed the operating plan so

long as his work was "reasonably incident"

to his mining claim. Appellants also rely

on 36 C.F.R. § 228.7, which states that a

notice of non-compliance will be issued

"[ilf an operator fails to comply with...

2la

his approved plan of operations and the

noncompliance is unnecessarily or unreason-

ably causing injury, loss or damage to sur-

face resources" (emphasis added). From

this, appellants argue that the regulations

contemplate conduct which is not in com-

pliance with the operating plan but which

is also not unnecessary or unreasonable.

In Hoffman Estates, the Supreme Court

listed a number of factors which affect the

degree of vagueness which the Constitution

tolerates. 455 U.S. at 498-99. First, eco-

nomic regulation is subject to a less

strict vagueness test, because its subject

matter is often more narrow and because

businesses can be expected to consult rele-

vant legislation in advance of action. The

court added that "the regulated enterprise

may have the ability to clarify the meaning

of the regulation by its own inquiry, or by

resort to an administrative process." Id.

at 498. Second, a stricter vagueness test

22a

applies where criminal penalties are

involved. Indeed, although the licensing

regulation in Hoffman only imposed civil

penalties, the court treated it as "“quasi-

criminal" because of its prohibitory and

stigmatizing effect. Id. at 499-500 & n.16.

Third, a scienter requirement may mitigate

vagueness, expecially with respect to the

adequacy of notice to the complainant.

Fourth, a more stringent test is applied

when the law threatens to inhibit the exer-

cise of constitutionally protected rights.

Analyzing § 261.10(k) in light of these

factors, we conclude that it is not uncon-

stitutionally vague. Although the regula-

tion imposes criminal penalties, in effect

it acts as an economic regulation governing

the conduct of mining operations’ on

National Forest lands. As with an economic

regulation, the subject matter is narrow,

and mining operators are not only expected,

but required, to obtain advance approval.

23a

Thus, the Doremuses had "the ability to

Clarify the meaning of the regulation by

[their] own inquiry, or by resort to the

administrative process." Hoffman Estates,

455 U.S. at 498; cf. Joseph E. Seagram &

Sons, Inc. v. Hostetter, 384 U.S. 35, 49

(1966)("we think it plain under our deci-

sions that...the limits of administrative

action are sufficiently definite or ascer-

tainable so as to survive challenge on the

grounds of unconstitutionality."). This

ability greatly mitigates the strict liabi-

lity nature of the offense. Finally, no

constitutionally protected rights are

implicated in this case. We therefore hold

that § 261.10(k) is not unconstitutionally

vague as applied.4

B. 36 C.F.R. § 261.9(a)

This regulation prohibits "“[dJamaging

any natural feature or other property of

the United States." "Damaging" is defined

as “to injure, mutliate, deface, destroy,

24a

cut, chop, girdle, dig, excavate, kill or

in any way harm or disturb." 36 C.F.R.

§ 261.2. sol

Appellants argue that the definition of

“damaging” invites arbitrary and discrimi-

natory enforcement because any entry into a

national forest will "disburb" some natural

feature. For the reasons outlined above, we

decline to address this “facial” argument.

As stated by the district court, “[clertain=

ly, damage is inflicted when a live tree is

destroyed by being pushed over.“ 658

F.Supp. at 758.

[6] The district court found it equally

Clear that “live green trees are a feature

of nature." Id. We agreed. Appellants argue,

however, that the district court failed to

consider the effect of a companion regula-

tion, 36 C.F.R. § 261.6(a), which prohibits

“[clutting or otherwise damaging any

_timber, tree or other forest product,

except as authorized by a special use

25a

authorization, timber sale contract, or

Federal law oor regulation" (emphasis

added). We see no inconsistency. § 261.6(a)

merely makes explicit the provisio in

§ 261.1(b), which excepts all activity

authorized by Federal law. The flaw in

appellant's argument is that 30 U.S.C.

§ 612 does not authorize mining operators

to act without Forest Service approval, and

the operating plan did not authorize the

cutting of live trees. The plan addresses

only small amounts of timber needed for the

mining operation; it does not give

appellants a blanket license to remove live

trees in any manner and quantity which they

believe to be reasonable. We therefore con-

Clude that § 261.9(a) is not unconstitu-

tionally vague as applied.

III. CONCLUSION

In summary, we hold that the regulations

at issue are consistent with the statutory

scheme and are not unconstitution vague.

26a

Appellants’ convictions are therefore

AFFIRMED.

FOOTNOTES

1. According to the testimony of a

Forest Service officer, at least one of the

trenches was dug after appellants were

issued- a notice of non-compliance and

ordered to shut down on July 26.

2. David Doremus also contends that

appellants attempted on several occasions

to appeal Forest Service decisions con-

cerning their plan. The record shows only

that appellants sent two letters of

complaint to Ron Gardner, a Forest Service

official. One of the letters (dated January

18, 1985) was sent prior to the violations

complained of, and although the subsequent

letter characterized the January 18 letter

as an “appeal” and “demanded” that it be

processed, nothing in the original letter

indicated that it constituted an appeal,

27a

and the Forest Service did not treat it as

one. If appellants were dissatisfied with

the Forest Service's response, they could

have filed an action to compel the Service

to process the appeal. See 5 U.S.C. § 706

(1)(1982).

3. Appellants other claims are wholly

without merit. First, the magistrate's

finding that no oral amendments to the plan

were made in 1985, except for an authoriza-

tion to remove one tree, is not clearly

erroneous. Second, the Forest Service

Manual merely establishes guidelines for

the exercise of the Service's prosecutorial

Giscretion; it does not act as a binding

limitation on the Service's authority.

Finally, neither the jury trial nor the

separation of powers issues were raised

below, and we will not consider them for

the first time on appeal. Scott v. Pacific

Maritime Ass'n, 695 F.2d 1199, 1203 (9th

Cir. 1983).

28a

4. Appellants also eontend that the

regulation invites arbitrary and discrimi-

natory enforcement because “(t]he prohi-

bited conduct is defined only in the

operating plan, which may be unilaterally

imposed upon Defendants by the distgrict

ranger." Rory Doremus' Opening Brief at 43.

We reject this contention. The conditions

of the operating plan are subject to nego-

tiation, and the claimant may appeal any

decision regarding the plan to the Regional

Forester and, if necessary, seek judicial

review.

The amici contended that the regulations

are invalid under Yick Wo v. Hopkins, 118

U.S. 356 (1886). It is true that the Court

in Yick Wo strongly suggested that the

ordinances involved there were invalid on

their face because they conferred

unrestrained discretion to deny a permit.

118 U.S. at 366. However, the Court expli-

citly chose not to rely on this ground,

. _

29a

relying instead on the fact that the ordi-

nance was discriminatorily applied on the

basis of race. Id. at 373-74. There is no

suggestion that such is the cause here.

30a

FILED

May 29, 1990

Cathy A. Catterson, Clerk

U.S. Court of Appeals

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

) No. 87-3831

Plaintiff-Appellee, )

) D.C. No. MISC

RORY DOREMUS and ) ORDER

DAVID DOREMUS,

Defendants-Appellants, )

)

BEFORE: POOLE, CANBY AND LEAVY, CIRCUIT

JUDGES.

The motion for additional time to file

petition for rehearing filed by appellant

RORY DOREMUS is ordered filed.

The petitions for rehearing are DENIED.

3la

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,

PLAINTIFF, Docket No.

85-3095-M-01

(F680410)

vs.

RORY DOREMUS,

85-3098-M-01

DEFENDANT. (F680411)

me ee ee et ee ee ee ee

JUDGMENT AND PROBATION/

COMMITMENT ORDER

In the presence of the attorney for the

government the defendant appeared in person

on this date: 8/4/86, with counsel Donald

W. Lojek, 305 W. Fort, Box 1712, Boise,

Idaho 83701.

PLEA - Not Guilty

FINDING & JUDGMENT - There being a find-

ing,/verdict of GUILTY, Defendant has been

convicted as charged of the offense(s) of

(F680410) Violating Clause IV-A of an

approved operating plan for a mining claim.

Keeping more than 5 trenches open. 36 CFR

261.10k; and (F680411) Damaged trees and

32a

surface resources on National Forest Land,

thus violating 36 CFR 261.9a.

SENTENCE OR PROBATION ORDER - The Court

asked whether defendant had anything to say

why judgment should not be _ pronounced.

Because no sufficient cause to the contrary

was shown, or appeared to the court, the

court adjudged the defendant guilty as

charged and convicted and ordered that: The

defendant is hereby ordered to pay the sum

of $500.00 as restitution and a fine of

$45.00 as to each violation and court costs

of $25.00 as to each violation for a total

of $640.00, all of which shall be paid

within thirty (30) days of the date of this

judgment, said payment to be made payable

to and mailed to the U.S. Department of

Justice, Office of the U.S. Attorney, 550

West Fort Street, Boise, Idaho 83724.

COMMITMENT RECOMMENDATION - Pursuant to

Rule 7(b) of the Rule of Procedure for the

Trials of Misdemeanors before U.S. Magis-

33a

trates, the ‘Defendant May appeal this

Judgment of Conviction by filing the.

appropriate statement with the Clerk of

Court within ten (10) days of the entry of

this Judgment.

/s/

Stephen M. Ayers,

U. S. Magistrate

Date: 8-5-86

34a

85 3095-M-01

UNITED STATES DISTRICT COURT

VIOLATION NOTICE

1. Record 1(1) - Violation No. (3-9) -

F680410

2. Action Code (2)

3. Court Code - 1112

4. Officer's No. - 121

5. Officer's Signature: M.W. Merkley

6. Date: 10/21/85

7. Date of Violation: 07/ /85

8. Violation Code: 26110k

9. Location Name: Sumerod Mine, Wizard

and Magic claims

10. RIM or other Code: 28N9E22

11. Violation Description: Violating

clause IVA of an approved operating plan

for a mining claim keeping more than 5

trenches open. 36 CFR 261.10k

12. Unit Identification:

Region: 11

Forest: 17

35a

District: 05

State: 16

County: 049

13. Resource Damage: [left blank]

14. Property Damage: [left blank]

15. Property Stolen: [left blank]

16. Property Recovered: [left blank]

17. Name: Doremus, Rory

18. Street Address: 114 So. Idaho St.

19. City: Grangeville

20. State: ID

21. Zip Code: 83530

22. Driver's License No.: [blank]

23. State: [blank]

24. Adult/Juvenile: Adult

25. Race: W

26. Sex: Male

27. - 42. [left blank]

43. A. MANDATORY APPEARANCE. If Box A is

checked, you MUST appear in court at time

and place shown above.

sins aaiiie

36a

Oct 21 85

The Nez Perce National Forest,

Judicial District, Idaho

Jerry Dombroske, District Ranger for the

Red River District, told me that Rory

Doremus, during July 1985, did use a

backhoe to dig in excess of 5 trenches on

National Forest land and that this was in

violation of Doremus' approved plan of

operations for his mining claim.

Information supplied to me from my

fellow officer's observation.

I declare under penalty of perjury that

the information which I have set forth

above and on the face of the violation

notice is true and correct to the best of

my kncvledge.

Executed this 2lst day of Oct. 1985.

/s/

Michael W. Merkley, Special Agent

F680411

37a

85 3098-M-0l

UNITED STATES DISTRICT COURT

VIOLATION NOTICE

Record 1(1) - Violation No. (3-9) -

Action Code (2)

Court Code - 1112

Officer's No. - 121

Officer's Signature: M.W. Merkley

Date: 10/21/85

Date of Violation: 07/ /85

Violation Code: 2619a

Location Name: Sumerod Mine, Wizard

and Magic claims

10.

ll.

trees

Forest

12.

RIM or other Code: 28N9E22

Violation Description: Damaging

and surface resources on National

land thus violating 36 CFR 261.9a

Unit Identification:

Region: 11

Forest: 17

District: 05

38a 7

State: 16

County: 049

13. Resource Damage: [left blank]

14. Property Damage: [left blank]

15. Property Stolen: [left blank]

16. Property Recovered: [left blank]

17. Name: Doremus, Rory

18. Street Address: 114 So. Idaho St.

19. City: Grangeville ,

20. State: ID

21. Zip Code: 83530

22. Driver's License No.: [blank]

23. State: [blank]

24. Adult/Juvenile: Adult

25. Race: W .

26. Sex: Male

27. = 42. [left blank)

43. A. MANDATOPY APPEARANCE. If Box A is

checked, you MUST appear in court at time

and place shown above.

39a

Oct 21 85

The Nez Perce National Forest,

Judicial District, Idaho

Jerry Dombroske, District Ranger for the

Red River District, told me that Rory

Doremus, during July 1985, did damage trees

and other surface resources using a back

hoe to dig trenches and pits. He went on to

tell me that 25 merchantable trees were

damaged and 1.25 acres of surface resources

were damaged. |

Information supplied to me from my

fellow officer's observation.

I declare under penalty of perjury that

the information which I have set forth

above and on the face of the violation

notice is true and correct to the best of

my knowledge.

Executed this 2lst day of Oct. 1985.

/s/

Michael W. Merkley, Special Agent

, ni

40a

§ 612. Unpatented mining claims

[a] Propsecting, mining or processing oper-

ations

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 opera-

tions and uses reasonably incident thereto.

[b]) Reservations in the United States to

use of the surface and surface resources

Rights under any mining claim hereafter

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 mineral deposits subject to loca-

tion under the mining laws of the United

States). Any such mining claim shall also

be subject, prior to issuance of patent

4la

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: Provided, however,

That any use of the surface of any such

mining claim by the United States, its per-

mittees or licenftees, shall be such as not

to endanger or materially interfere with

prospecting, mining or processing opera-

tions or uses reasonably incident thereto:

Provided further, That if at any time the

locator requires more timber for his mining

operations than is available to him 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 har-

vesting under the rules and regulations of

42a

that agency and which is substantially

equivalent in kind and quantity to the

timber estimated by the disposing agency to

have been disposed of from the claim:

Provided further, That nothing in this

subchapter and sections 601 and 603 of this

title shall be construed as affecting 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 clain.

{c] Severance or removal of timber

Except to the extent required for the

mining claimant's prospecting mining or

processing operations and uses reasonably

incident thereto, or for the construction

of buildings or structures in connection

therewith, or to provide clearance for such

opeations or uses, or to the extent

43a

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, remove, or use any vege-

tative or other surface resources thereof

which are subject to management or disposi-

tion by the United States under subsection

(b) of this section. Any severance or remo-

val of timber which is permitted under the

exceptions of the preceding sentence, other

than severance or removal to _ provide

clearance, shall be in accordance with

sound principles of forest management.

(July 23, 1955, c. 375, § 4, 69 Stat. 368)

—_—

44a

FOREST SERVICE MANUAL

UNITED STATES DEPARTMENT OF AGRICULTURE

FOREST SERVICE

TITLE 2800 - MINERALS AND GEOLOGY

Contents

ZERO CODE

CHAPTER

2810 MINING CLAIMS

2820 MINERAL LEASES, PERMITS, AND LICENSES

2830 MINERAL RESERVATIONS AND RIGHTS OUT-

STANDING

2840 RECLAMATION

2850 MINERAL MATERIALS

2860 FOREST SERVICE AUTHORIZED PROSPECT-

ING AND MINERAL COLLECTING

[FSM 9/87 AMEND 33]

2880 GEOLOGIC RESOURCES AND SERVICES

— eae ee

renee od

2810.

2811

2811.

2812

2813

45a

TITLE 2800 —- MINERALS AND GEOLOGY

CHAPTER 2810 - MINING CLAIMS

Contents

1 Authority

4 Responsibility

BASIC ELEMENTS OF GENERAL MINING

LAWS

l Lands Open to Mineral Entry

2 Locat<ble Minerals

3 Types of Mining Claims

31 Lode Claims

32 Placer Claims

33 Millsite Claims

34 Tunnel Site Claims

4 Qualifications of Locators

5 Requirements for Valid Mining

Claims

6 Abandonment of Mining Claim

PROVISIONS OF 1955 MULTIPLE-USE

MINING ACT

RIGHTS AND OBLIGATIONS OF CLAIM-

ANTS

2813.1

2813.11

2813.12

2813.13

2813.13a

2813.13b

2813.14

2813.2

2814

2814.1

2814.11

2814.12

2814.13

46a

Rights of Claimants

Rights of Possession Against

Other Citizens (Third Parties)

Rights to Minerals (Against

United States)

Surface Rights

Claims Which Are Verified as

Being Valid Prior to July 23,

1955

Claims Validated Subsequent to

Act of 1955

Right of Access to Claim

Obligations

RIGHTS AND OBLIGATIONS OF UNITED

STATES

Rights of United States

Right To Examine Claims’ for

Validity and To Contest If

Appropriate

Right To Regulate Prospecting

and Mining Activities

Right To Manage and Dispose of

2814.14

2814.15

2814.16

2814.2

2814.21

2814.22

2814.23

2814.24

2815

2815.01

2815.04

2815.05

2815.1

2816

47a

Vegetative Surface Resources

Right To Manage and Dispose of

Common Varieties of Mineral

Materials

Right To Enter and Cross Claims

Right To Authorize Uses by Third

Parties

Obligations

Respect Claim and Claimant's

Property

Allow Mining Claimants to Obtain

Timber

Prevent Violations of Laws and

Regulations

Provide Reasonable Alternatives

ACQUISITION OF TITLE

Authority

Responsibility

Definition

Requirements for Claimant

MINING ACTIVITIES IN SPECIAL

AREAS

2816.11

2816.12

2816.2

2816.3

2816.4

2816.5

2816.6

2817

2817.01

2917.02

2817.03

2817.04

2817.1

2817.11

2817.2

2817.21

48a

Wilderness and Primitive Areas

Rights and Restrictions in

Wilderness

National Forest Primitive Areas

National Forest Areas

Wild and scenic Rivers

Power Site Withdrawals

Reclamation Withdrawals

Municipal Watersheds and Other

Special Areas

SURFACE MANAGEMENT PROCEDURES

UNDER CFR 228 SUBPART A

[FSM 2/82 AMEND 20]

Authority

Objectives

Policy

Responsibility

Notice of Intention To Operate

Determination of Significant

Surface Resource Disturbance

Plan of Operations

Requirements Within Plan

2817.22

2817.23

2817.24

2817.25

2817.26

‘2817.3

*-~2817.4

2817.41

2817.42

2817.43

2818

2818.03

2818.1

2818.2

2818.3

2818.31

2818.32

49a

Proprietary Information

Review and Approval of Plans

Bonds

Access

Operations in Wilderness

Inspection and Noncompliance

Operations Involving Hazardous

Substances (Interim Directive)

Authority (Interim Directive)

Objectives (Interim Directive)

Standards and Procedures (Inter-

im Directive) -*

[*-FSM 6/85 AMEND 29-*]

OCCUPANCY ON MINING CLAIMS

Policy

Actions Under 1872 Act Use

Regulations

Uninhabitable Cabin on Mining

Claim

Use of Validity Determinations

Initial Procedures t

Mineral Examiner's Report

{

2818.33

2818.4

2818.5

2819

2819.1

2819.2

2819.3

50a

Indicates Claim Is Valid

Mineral Examiner's Report

Indicates Claim is Not Valid

Resuming Action After Null and

Void Decision

Rights to Preexisting Improve-

ments

MINING CLAIM CONTESTS

Forest Service Role

Department of the Interior Role

Actions Before Magistrates and

in Federal Court

; 5la

TITLE 2800 ~ MINERALS AND GEOLOGY

CHAPTER 2810 ~- MINING CLAIMS

Most of the public domain lands which

became National Forest System lands are

subject to location of certain minerals

under the mining law of 1872, as amended

(30 U.S.C. 21-54). Some of these lands have

been withdrawn from entry and location by

act of Congress or by administrative action

pursuant to an act of Congress or other

authority.

This chapter is concerned only with the

administration of the laws relative to

locatable or hardrock minerals on public

domain land. The administration of the

mineral leasing laws is covered in FSM 2850

and mineral materials are covered in 1021.

Such mineral and land classifications

are defined in FSM 2805, and the principal

acts relating to them are listed and

discussed in FSM 2801.

2810.1 = Authority. The principal auth-

52a

ority for prospecting for and disposal of

public domain hardrock mineral deposits is

the 1872 mining law, as amended and supple-

mented (FSM 2801; 30 U.S.C. 21-54).

Basically, the 1872 act provides that

valuable mineral deposits in the public

domain lands are open to exploration and

purchase. The lands in which such deposits

_ are found are open to occupation and

purchase. The act of June 4, 1897, extended

in general the mining laws to public domain

National Forest lands.

2810.4 = Responsibility. The Bureau of

Land Management (BLM), as authorized by the

Secretary of the Ivterior, is responsible

for administering the general mining laws.

However, the memorandum of understanding of

April 1957 (FSM 1531.12) between the Bureau

of Land Management and the Forest Service

provides for joint administration of the

mining laws on National Forest System

lands. The primary purpose of the agreement

53a

is to ensure efficient coordination between

the general surface resource management by

the Forest Service and the administration

of the mining laws by the BLM. The mining

laws ate administered through 43 CFR 3000,

Minerals Management, and 43 CFR _ 1800,

Public Administrative Procedures. Opera-

tions on claims must comply with the

surface-management requirements for mining

Claims set forth in (36 CFR 228 Subpart A).

. . -

2811.5 = Requirements for Valid Mining

Claim. The general mining laws impose cer-

tain obligations on a claimant who wishes

to take advantage of the privileges those

laws provide. A claimant must:

ls Discover a valuable deposit (FSM

2815.1, item 1) of a locatable mineral in

federally owned public domain land open to

the operation of the mining laws. Satis-=

faction of other requirements of the 1872

act does not make a claim valid absent a

Sanat iia dita

54a

discovery of a valuable deposit.

2. Locate a claim on the valuable

deposit.

3. Identify and monument the claim in

the manner required by State law.

*-4,. File in the appropriate office of

the Bureau of Land Management a copy of the

official record of the notice of location

or certificate of location, including a

description of the location of the mining

claim or mill or tunnel site sufficient to

locate the claimed lands on the ground. The

copy must be filed within 90 days after the

date of location of the claim(s).-* [*-FSM

2/82 AMEND 20-*]

5. Perform annual assessment work or

annual labor worth at least $100 on, or for

the benefit of, the claim.

*-6. File a copy of an affidavit of

assessment work or notice of intent to hold

in the county office where the location

‘

notice or certificate is recorded.

55a

7. File in the appropriate office of

the Bureau of Land Management a copy of the

affidavit of assessment work or notice of

intent to hold. The copy must be filed by

December 30 of each year following the

calendar year in which the claim was

located.-* [*-FSM 2/82 AMEND 20-*]

With the fulfillment of these require-

ments, a claimant obtains a valid mining

claim. So long as such conditions continue

to exist, the claimant is entitled to

possession of the claim for mining pur-

poses. It is optional with the *-claimant

whether to apply for patent. Patent proce-

dures and-* requirements, are described in

FSM 2815. [*-FSM 2/82 AMEND 20-*]

The term "valid claim" often is used in

a loose and incorrect sense to indicate

only that the ritualistic requirements of

posting of notice, monumentation, discovery

work, recording, annual assessment work,

payment of taxes, etc., have been met. This

56a

overlooks the basic requirement that the

claimant must discover a valuable mineral

deposit. Generally, a valid claim is a

Claim that may be patented.

Although the statues require the disco-

very of a valuable mineral deposit prior to

the location of a claim, the courts and the

Department of Interior have recognized a

right of possession, in the absence of the

discovery required by statute, if the

Claimant is ai ligently prospecting. The

Forest Service recognizes this principle,

and in keeping with the _ policy of

encouraging bona fide prospecting and

mining, will not discourage or unduly

hamper these activities. Rather, the Forest

Service should aid the legitimate activi-

ties of a prospector making bona fide

efforts to obtain a discovery on a good

prospect. On the other hand, the Forest

Service should oppose attempts by prospec-

tors to build permanent structures, cut

57a

timber, build or maintain roads, unless

authorized by special use permit or

approved operating plan.

A mining claim may lack the elements of

validity and be invalid in fact, but it

must be recognized as a claim until it has

been finally declared invalid by the Depart-

ment of the Interior or Federal courts.

A claim unsupported by a discovery of a

valuable mineral deposit is invalid from

the time of location, and the only rights

the claimant has are those belonging to

anyone to *-enter and prospect on National

Forest lands.-* [*-FSM 2/82 AMEND 20-*]

1. Right to exclusive possession and

occupancy for mining purposes, including

control of the surface. Permission must be

obtained from the claimant to cross the

Claim with a road. The Forest Service must

obtain claimant's permission to harvest

timber from the claim, except for removal

58a

of dead or diseased trees which constitute

a menace to the Forest.

2. Right to cut timber on the claim to

use for mining purposes and to _ provide

clearance required to conduct’ mineral

operations.

3. Right to remove timber for conver-

sion to lumber to be used for mining pur-

poses, provided that the same species and

ee. eee oS Le

substantially equivalent volume is returned

for use on the claim or group of claims

from which it was cut.

4. Right to sell or otherwise dispose

of timber required to be cut in conducting

actual mining of the mineral deposits or

for clearing for surface facilities needed

for mining or processing of the mineral,

provided that the rate of cutting is with

equal pace to the actual mining or need of

surface facilities.

5. Right to cut timber from a millsite

for building milling or mining facilities

59a

on the millsite.

*-2813.13b - Claims Validated Subsequent

to Act of 1955. Such claims which otherwise

come under 30 U.S.C. 612 carry the-* same

surface rights as above, except for the

following modifications: [*-FSM 2/82 AMEND

20-* ]

1. Right to occupancy and use necessary

for prospecting, mining, and processing,

but not the exclusive right to the surface.

Lands containing such claims are subject to

the rights of the United States to manage

and dispose of the vegetative resources, to

manage other resources except locatable

minerals, and to the right of the United

States, its permittees and licensees, to

use so much of the surface area necessary

for such purposes and for access to adja-

cent lands.

2. Right to cut timber on the claim for

mining uses and for necessary clearing,

except that timber cut in the process of

ial

60a

necessary clearing cannot be sold by the

claimant. The United States has the right

to dispose of timber and other vegetative

resources.

3. Right to additional timber required

for mining purposes, if timber was removed

from the claim by the Forest Service after

clein location. The quantity and kind of

timber to be provided, free of charge from

the nearest available source which is ready

for harvesting, will be’ substantially

equivalent to that previously removed from

the claim.

2813.14 - Right of Access to Claim. The |

right of reasonable access for purposes of :

prospecting, locating, and mining is pro-

vided by statute. Such access must be in

accordance with the rules and regulations

of the Forest Service. However, the rules

and regulations may not be applied so as to

prevent lawful mineral activities or to

cause undue hardship on bona fide prospec-

6la

tors and miners.

2814.24 - Provide Reasonable Alterna-

tives. Forest officers should provide bona

fide prospectors and miners’ reasonable

alternative access’ routes, exploration

methods, special use permits, and operating

plan provisions in order that they may carry

out necessary mineral associated activities

without violation of laws and regulations.

2817.02 - Objectives. In managing the

use of the surface and surface resources,

the Forest Service should attempt to mini-

mize or prevent, mitigate, and repair

adverse environmental impacts on National

Forest System surface and cultural resour-

ces as a result of lawful prospecting,

exploration, mining, and mineral processing

operations, as well as activities reason-

ably incident to such uses. This should be

accomplished by imposition of reasonable

i i a I i)

62a

conditions which do not materially inter-

fere with such operations.

2817.03 - Policy. The primary means for

obtaining protection of surface resources

should be by securing the willing coopera-

tion of prospectors and miners. The will-

ingness of the majority of prospectors and

siases to comply with regulations, reason-

ably administered, is a principal key to

the protection of environmental quality in

the National Forest System. Face-to-face

dialog with operators is encouraged.

*-However, when reasonable efforts have

been made to obtain compliance with the

regularions and the noncompliance is unne-

cessarily or unreasonably causing injury,

loss, or damage to surface resources,

enforcement action will be taken. (See FSM

2817.3(5).) [*-FSM 8/83 AMEND 24-*]

The Forest Service is not authorized to

manage locatable mineral resources. in

National Forest System lands. The Forest

63a

Service is, therefore, not directly con-

cerned with methods and techniques of

prospecting, exploration, mining or mineral

processing, except to the extent that cer-

tain methods and techniques can have

greater or lesser environmental impacts.

The regulations shall be administeered

in a fair, reasonable, and _ consistent

manner and not as a means of inhibiting or

interfering with legitimate, well-planned

mineral operations.

These regulations apply to all unpa-

tented millsites, tunnel sites, and mining

claims, including those not subject to 30

U.S.C. 612, and to activities, primarily

prospecting, which may be conducted under

the mining laws but not on claims.

The provisions of the regulations for

operating plans will not be used as means

of solving existing trespass and *-unauth-

orized occupancy problems (FSM 2818) on

lands clearly open to location under the

en ee ee a eee Be

64a

1872 mining law.-* [*-FSM 2/82 AMEND 20-*]

The statutory right of the public to

prospect, develop, and mine valuable

minerals, and to obtain a patent, will be

fully honored and protected. Proprietary

information relating to those rights and

obtained through the administration of

uheee regulations will be protected to the

full extent authorized by law.

2817.3 - Inspection and Noncompliance

1. Under Approved Operating Plan. When

activities are being conducted under an

approved operating plan, regular compliance

inspections must be conducted to ensure

reasonable conformity to the plan and to

guard against unforeseen detrimental

effects. The frequency, intensity, and

complexity of inspection shall be commen-

surate with the potential for irreparable

and unreasonable damage to surface

resources.

65a

2. Without Operating Plan. When opera-

tions are being conducted without an

operating plan because it was determined

none was required, the need for regular

inspections shall be determined on a case-

by-case basis. Timely inspections shall

help assure conformance to the environmen-

tal protection requirements of the regula-

tions, as well as identify operations that

vary from those described in the notice of

intention and which may require an operat-

ing plan.

*-3. Detection. Forest officers shall

make note of, and report all operations for

which there have not been submitted either

notices of intention to operate or operat-

ing plans. Such operations shall be iden-

tified and inspected as soon as practicable

to determine if a plan of operations or a

notice of intent is required.-* [*-FSM 8/82

AMEND 24-*]

4. Inspector Qualifications. Inspection

i i ti

66a

shall be conducted by Forest officers who

are familiar with the equipment and methods

needed to find and produce minerals and who

can accurately assess the significance of

surface resource disturbance. Inspectors

should be capable of identifying those

activities of an cperator which are reason- -

ably necessary to the operation, which ones

could pehaps be done differently with less

effect on surface resources without

endangering or hindering the operation, and

which ones are unreasonable or unnecessary.

5. Noncompliance. Wherever practicable,

acts of noncompliance should be discussed

with the operator, either in person or by

telephone in an attempt to secure willing

and rapid correction of the noncompliance.

Such discussions shall be made a matter of

record in the operator's case file. Where

the operator fails to take prompt action to

comply and the noncompliance is unne-

cessarily or unreasonably causing injury,

67a

loss or damage to surface resources, the

*-authorized officer must take prompt non-

compliance action. For direction to resolve

unauthorized residential occupancy on

mining claims. See FSM 2818.

a. Notice of Noncompliance. The first

step in any noncompliance action is to

serve a written notice of noncompliance to

the operator or the operator's agent, in

person, by telegram, or by certified mail.

This notice must include a description of

the objectionable or unapproved activity,

an explanation of what must be done to

bring the operation into compliance, and a

reasonable time period within which

compliance must be obtained. Continued

refusal of the operator to comply after

notice will usually require enforcement

action.

b. Enforcement Action. Civil or crim-

inal enforcement, or a combination of both,

are available for enforcement of 36 CFR

68a

228. The decision on which procedure, or

combination, to use shall depend upon the

particular facts in each case and the pro-

bability of success and possible conse-

quences. The Regional mineral staff or the

local Office of General Counsel shall be

consulted for advice prior to any enfor-

cement action to ensure consistency and

conformance with mineral law and regula-

tion. The appropriate U.S. Attorney shall

be consulted to coordinate the criminal and

civil actions.-* [*-FSM 8/82 AMEND 24-*]

*-(1) Civil Action. Two types of civil

relief in Federal District Court are

available: damage recovery and injunctive.

An action to recover costs of repairing

damages or to compensate for irreparable

damages would be appropriate for those

cases where such damages have already

occurred and no further operations were

being conducted or likely to be conducted.

Such damage suits require extended periods

69a

of time for completion. Injunction relief

can be obtained quickly when the facts of a

particular case warrant such action. There

must be strong justification that the party

requesting relief is suffering or will

suffer irreparable harm and that harm must

usually be incompensible. Moreover, it must

be likely that the complainant will

actually succeed on the merits of the case.

(2) Criminal Action. In cases where

unnecessary and unreasonable damage is

occurring and where reasonable attempts

fail to obtain an operating plan or to

secure compliance with an approved operat-

ing plan, the operator may be cited for

violation of the appropriate section of 36

CFR 261 or 262, according to existing dele-

gation of authority.-* [*-FSM 8/82 AMEND

24-* ]

70a

Forest Service, USDA

§ 228.7 Inspection, noncompliance.

(a) Forest Officers shall periodically

inspect operations to determine if the

operator is complying with the regulations

in this part and an approved plan of opera-

tions.

(b) If an operator fails to complay with

the regulations or his approved plan of

operations and the noncompliance is unne-

cessarily or unreasonably causing injury,

loss or damage to surface resources the

authorized officer shall serve a notice of

noncompliance upon the operator or his

agent in person or by certified mail. Such

notice shall describe the noncompliance and

shall specify the action to comply and the

time within which such action is to be

completed, generally not to exceed thirty

—_——__—

(30) days: Provided, however, That days

during which the area of operations is

inaccessible shall not be included when

7la

computing the number of days allowed for

compliance.

PART 261 - PROHIBITIONS

Subpart A - General Provisions

Sec.

261.1 Scope.

261.la Special use authorizations, con-

tracts and operating plans.

261.1b Penalty.

261.2 Definitions.

261.3 Interfering with a Forest Officer,

volunteer, or human resource program

enrollee or giving false report to a

Forest Officer.

261.4 Disorderly conduct.

261.5 Fire.

261.6 Timber and other forest products.

261.7 Livestock.

261.8 Fish and wildlife.

261.9 Property.

261.10 Occupancy and use.

72a

261.11 Sanitation.

261.12 Forest development roads and trails.

261.13 Use of vehicles off roads.

261.14 Developed recreation sites.

261.15 Admission, recreation use and spe-

cial recreation permit fees.

261.16 National Forest Wilderness.

261.17 Boundary Waters Canoe Area Wilder-

ness.

261.18 Pacific Crest National Scenic Trail.

261.19 National Forest primitive areas.

261.20 Unauthorized use of "Smokey Bear"

and "Woodsy Owl" symbol.

261.21 Wild free-roaming horses and burros.

Subpart B - Prohibitions in Areas

Designated by Order

261.50 Orders.

261.51 Posting.

261.52 Fire.

261.53 Special closures.

261.54 Forest development roads.

261.55 Forest development trails.

73a

261.56 Use of vehicles off forest develop-

ment roads.

261.57 National Forest wilderness.

261.58 Occupancy and use.

Subpart C - Prohibitions in Regions

261.70

261.71

261.72

261.73

261.74

261.75

261.76

Issuance of regulations.