# Petition for Writ of Certiorari — Doremus v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2820%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 498 U.S. 1046 ## Text “ i iP Ue er QWe4 oa We EILED ; ra @ it : Case No. it FR. 7 wR 1 eee = Pee: IP i OLERK 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 & 1l 23 19 26 25 24 17 17 (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, 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 12 23 23 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 2 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 3 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. a 4 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 | 5 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 6 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 I. This case involves important issues of Federal law pertaining to the use of valid 7 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. 8 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; (c) The Forest Service regulation makes the damaging of any natural feature a crime; (d) Prospecting and mining activities, and especially tree removal, 9 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- 10 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 ll 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 12 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) 13 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 14 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 15 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 Te 16 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 & 17 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, 18 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 19 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 20 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. 21 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) 22 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, 23 §§ 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 24 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- 25 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 26 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 27 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 28 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 29 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 2a 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- 3a 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 4a 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 5a 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) 6a (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 7a 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 8a 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 9a {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 1. F680411 2. 3. 4. 5. 6. $, 8. 9. 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. 2810. 2811 2811. 2811. 2811. 2811. 2811. 2811. 2811. 2811. 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 Locatlem, amendments may be obtained. In summary, in this area Congress has provided broad policy statements recogniz- ing the competing interests of mining operations and the environment. Congress has directed the Secretary of Agriculture to draft regulations which do not materially interfere with miing operations and the reasonable incidents thereto, but which, at the same time, protect the environment from unbridled destruction. The regulations drafted by the Secretary cannot 93a contemplate or define what is reasonable conduct with respect to mining under all circumstances. With this in mind, the regu- lations provide for a vehicle by which representatives of the Secretary, together with the mining operator, define what is reasonable under the circumstances atten- dant the specific mining operation. This vehicle is the operating plan. The regulations of the Secretary also provide that violation of this plan is prohibited, since such action would be unreasonable under the circumstances. 36 C.F.R. § 261.10(k). Conduct which is violative of the operating plan violates the regulatory scheme and the statutory scheme. The regulations also prohibit certain other conduct such as damaging natural features or property of the United States. 36 C.F.R. § 261.9(a). Therefore, those regulations which can _ prohibit conduct under any factual circumstances, together 94a with the operating plan, provide the miner with a description of that conduct which is acceptable under the circumstances and that conduct which tips the scales to the detri- ment of the environment. In this case, the appellants have argued that the regulations conflict with the pro- nouncements of Congress, particularly 30 U.S.C. § 612. The court finds no such conflict. The statute provides for limited regulation of the mining activities on National Forest land in the interest of the protection and preservation of the National Forests. As stated in United States v. Richardson, 599 F.2d 290 (9th Cir. 1979), that regulatory right is limited so as not to endanger or materially interfere with mining operations. Appellants have argued that their actions were reasonable and so in confor- mance with 30 U.S.C. § 612. Appellants con- tend that since they are in conformance 95a with the requirements of 30 U.S.C. § 612, any regulation which deems that same action unreasonable and illegal is contrary to the statute and must fall in deference to the statute. However, the definition of reason- able as contemplated by the statute is found in the regulatory scheme incor- porating the operating plan. B. Vagueness Appellants have asserted that the regu- lations upon which their convictions are based, 36 C.F.R. § 261.10(k) and 36 C.F.R. § 261.9(a), are vague both facially and as applied. The requirement that criminal sta- tutes be specific in the conduct they for- bid is founded on principles of due process. A person of reasonable intelli- gence, exercising common understanding and practice, must be provided fair and reason- able warning of that which the law proscribes. United States v. National Dairy Products Corp., 372 U.S. 29 (1963). Absent 96a a question of first amendment freedoms, the statute or regulation is examined in the light of the facts of the case at hand. United States v. Louderman, 576 F.2d 1383 (9th Cir. 1978). l. Title 36 C.F.R. § 261.10(k) Initially, appellants rather weakly attempt to suggest to this court that their activities in workking their mining claims were not significant disturbances of sur- face resources and, therefore, did not even require the existence of an operating plan. This argument was not raised below, the evidence is quite to the contrary, and the appellants had operated under an operating plan for several years prior to 1985 and had signed and acknowledged the terms of the 1985 operating plan. Appellants cannot argue that an operating plan should not have been developed to guide their conduct for the first time on appeal. In any event, the trial court's finding that a valid 97a Operating plan was in existence for the year 1985 is supported by the record and the admissions of the appellants. The next question which should be addressed is whether amendments were made to the operating plan. The trial court found that oral amendments had been made to operating plans for years prior to 1985. This trial court found that the 1985 operating plan required all amendments to be in writing and that no written amendment was made to the operating plan. The trial court's findings regarding amendments to the plan are substantiated by the record and any conflicting evidence was a matter for the trier of fact to determine. This court holds that the trial court's factual findings are supported by the record and are upheld. The trial court found that on July 31, 1985, in excess of thirty trenches were open at the mining site. The trial court 98a concluded that the appellants had violated the terms of the operating plan by keeping more than five trenches open on July 31, 1985. A portion of the plan provides in paragraph IV-A that no more than five trenches will be open at one time. The trial court found that 36 C.F.R. § 261.10 (k) was certainly clear on its face and as applied. Facially, 36 C.F.R. § 261.10(k) prohi- bits violating a term or condition of an operating plan. Looking merely at the regu- lation itself, without for the moment con- sidering the operating plan, the regulation is clear on its face. Appellants state that absent any requirement of intent, the regu- lation is impermissibly vague in any appli- cation, because it makes no reference to matters reasonably related to effectuation of mining laws, nor is there provision within Section 10(k) for description of prohibited conduct by any authorized 99a legislative or regulatory body. The analy- sis of the statutory and regulatory scheme set forth above sounds the death knell for his argument. The regulation does, in fact, refer to matters reasonably related to effectuation of mining laws when one reali- zes that the operating plan defines those matters reasonably related to effectuation under the circumstancs. Similarly, a description of the prohibited conduct is the essence of the operrating plan and the statutes authorize the Secretary of Agriculture to provide regulations’ and vehicles and to designate representatives to tailor and to limit conduct under the circumstances of each case. The court finds that 36 C.F.R. § 261.10(k) is clear on its face and that a de novo review mandates upholding the trial court's determination. Appellants have also asserted that 36 C.F.R. § 261.10(k) is void for vagueness as applied to the facts of this case. The 100a trial court found that maintaining more than five open trenches clearly violated the terms of the operating plan and that the operating plan was itself specific enough so as not to succumb to a challenge for vagueness. Appellants have, for the first time on appeal, and without any mention of such interpretation in the record, suggested to this court that the condition that only five trenches remain open could reasonably be interpreted so that the phrase "at one time" implies a reasonable period of time to leave trenches other than five active trenches open while assay results are being obtained and reclamation work is finished. The court cannot find that this argument was raised below. In any event, such an assertion flies in the face of the clear language of the operating plan. The plan provides for no more than five trenches to be open at one time. The pian does provide 10la for test trenches. The language of the Operating plan could not be more clear. Five trenches is all that is allowed and no more. The plan does not refer to five active trenches, or five active trenches and trenches to be reclaimed, or five active trenches and test trenches and trenches to remain open while assay results are being obtained. The plan states, five trenches. Appellants stretch credulity in asserting the interpretation for the first time on appeal. The court holds that 36 C.F.R. § 261.10(k) clearly sets forth the proscribed conduct under the facts of this particular case, the trial court's conclu- Sions are not clearly erroneous, and even a de novo review of this mixed question of law and fact results in a conclusion that the statute is not void for vagueness and the trial court properly so held. 2. Title 36 C.F.R. § 261.9(a). The appellants have challenged this 102a regulation as being vague on its face. Title 36 C.F.R. § 261.9(a) prohibits “damaging any natural feature or other pro- perty of the United States." Title 36 C.F.R. § 261.2 states that “[dJamaging means to injure, mutilate, deface, destroy, cut, chop, girdle, dig, excavate, kill or in any way harm or disturb." The term “natural feature” is not defined in the regulation. Forester Ronald Allen Gardner testified at the trial that “natural feature" would be any feature present in nature such as trees, rock outcrops, soils and water. The trial court found that the vagueness challenge to 36 C.F.R. § 261.9(a) was some- what more troublesome than the challenge to 36 C.F.R. § 261.10(k). However, the trial court found that the regulation is suf- ficiently clear so that an ordinary person, exercising ordinary common sense, can suf- ficiently understand and comply with it. 103a The court found that there is no doubt that the appellants damaged the natural features of the environment with their trenching, destruction of trees and other excavation work. The regulation's definition of "damaging" is as would be expected from a dictionary definition. The definition parallels a common sense, everyday defini- tion of "damaging." Plaintiff argues that the definition is overbroad and _ could include bending a blade of grass_ on National Forest land. The argument is too abstract to be relevant to the challenge to the reguiation as being vague on its face. The term "damaging" is defined and provides reasonable notice of what is proscribed. The appellants have argued that the term "natural feature" is not defined and provi- Ges insufficient notice as to its meaning. Common sense suggests that natural would be the opposite of unnatural or manmade. The 104a environment and all of its features or ele- ments unaffected by intrusion by man is the broad picture. The material aspects such as trees, rocks, soil and water are _ the features of nature. The court finds nothing vague about this common sense definition. Upon de novo review, the court has deter- nines to uphold the conclusion of the trial court that 36 C.F.R. § 261.9(a) is not unconstitutionally vague on its face. The appellants have also challenged 36 C.F.R. § 261.9(a) as being vague as applied to the case. The violation is the destruc- tion of live trees. The trial court found that trees had been pushed over on or before July 30, 1985, in excess of the authority of the plan. The trial court con- cluded that the appellants had damaged natural features by pushing over trees. The trial court found the regulation to be suf- ficiently clear both on its face and as applied to withstand constitutional 105a challenge. Appellants make reference to pushing over a tree. However, the exhibits show that numerous live trees were knocked over or bulldozed down. Certainly, damage is inflicted when a live tree is destroyed by being pushed over. Equally certain, live green trees are a feature of nature. The regulation, as applied to this case, is not vague. The situation in this case involves the bulldozing of numerous live trees, not the bending of a blade of grass or acciden- tal or incidental knocking over of one tree The challenge should also be reviewed with respect to the operating plan. The situation under the regulations with respect to miners is different from that with respect to others. Miners are statu- torily given more rights to alter the environment, but are also, as noted above, limited. The limitation is embodied in the operating plan. 106a In this case, the operating plan states that all timber requirements are to come from small dead trees. The operating plan states that the area of exploration and trenching is to be confined to the clearcut area. Appellants did anh euntine themselves to the clearcut area, but instead went into the wooded area and knocked down live trees Appellants argue that the operating plan does not expressly state that trees cannot be knocked over. Appellants argue that in following the contours of the land or a Significant vein, the trenching may zigzag and a small tree may get into the way. Appellants argue that it is reasonable to destroy the tree. This argument was made below to the trial court. However, as noted above, what is reasonable under the cir- cumstances of this mining operation is spelled out in the operating plan. Appel- lants cannot look solely to the satutes and prey on the word “reasonable.” The operat- 107a ing plan rovides for written amendment and an agent authorized to make such written amendment is available within seven miles of the claims of the appellants. Authori- zation to exceed the clearcut area or remove live trees could have been sought viz the amendment process. It was not. Appellants’ argument that it is unreason- able to make them stop operating and get an amendment to move a small tree is inap- posite on this appeal. That argument should have been addressed when the operating plan development was in progress. Furthermore, it does not appear to be unreasonable to seek amendment to the operating plan when it appears that operations need to go out- side of the clearcut area, necessarily involving the destruction of live trees. The regulation prohibits damaging natural features. As found by the trial court, numerous trees were not just trimmed or nicked by a bulldozer, but pushed over. 108a This act was outside of the operating plan and was unreasonable under the circum- stances. The conduct prohibited by regula- tion, under the circumstances of this case, was Clearly dictated and clearly exceeded. The court holds that upon full review, the finding of the trial court that 36 C.F.R. § 261.9(a) is not unconstitutionally vague as applied to this case, is correct and is upheld. C. Sufficiency of Evidence Appellants have argued that insufficient evidence was produced below to sustain their convictions. Specifically, appellants again argue that their conduct was reason- able and, therefore, in accord with 30 U.S.C. §§ 612 and 613. Appellants argue that the government put on no evidence of the reasonableness of their actions. However, as addressed above, the operating plan defines the extent of reasonableness under the circumstances. Not only was there 109a abundant evidence to show that more than five trenches were open and that features of nature, i.e., live trees, were damaged, but that this was done in violation of the operating plan. The evidence regarding the damaging of natural features should find some guidance from the operating plan as discussed above. The evidence in the record clearly shows that natural features of the environment were damaged. Clear and con- vincing evidence supports the trial court's findings and conclusions and conviction of the appellants. They will not be upset on appeal. The decision of the magistrate and the convictions are, in all respects, AFFIRMED. DATED this 21 day of April, 1987. /s/ HAROLD L. RYAN UNITED STATES DISTRICT JUDGE 110a USDA - FOREST SERVICE NEZPERCE NATIONAL FOREST RED RIVER RANGER DISTRICT ELK CITY, IDAHO 83535 (208/842-2255) PLAN OF OPERATION NO. 05-72083 This Plan of Operations, including all provisions made herein, meeting require- ments under 36 CFR 228.4, are approved and mutually agreed upon by the UNITED STATES OF AMERICA, acting through the USDA - FOREST SERVICE, NEZPERCE NATIONAL FOREST, RED RIVER RANGER DISTRICT and RORY DOREMUS. This plan consists of seven divisions: I. GENERAL INFORMATION, II. PRINCIPLES, III. PROPERTY OR AREA, IV. DESCRIPTION OF OPERATIONS, V. MITIGATION MEASURES, VI. RECLAMATION, and VII. ACKNOWLEDGEMENTS together with vicinity and Project Area Maps, Drawings and Specifications’ for Developments (if any), and such attache- ments as may be provided for herein. llla Upon satisfactory compliance with the terms of this Plan of Operation, your reclamation bond will be returned to you. No refund will be made until compliance with these measures has been satisfactorily completed. The required reclamation bond for this operation is based on the items listed in Section V. MITIGATION and VI. RECLAMATION enclosed and THE RECLAMATION BOND WORKSHEET attached and made a part of this Plan of Operation. UNITED STATES OF AMERICA By /s/ 5/15/85 Jerry Dombrovske Date /s/ District Ranger Title = RORY DOREMUS By /s/ May 13, 1985 Date /s/ Super. Title ll2a I. GENERAL INFORMATION This is an lode claim and mill operation originally proposed on Jan. 21, 1985, which follows the previous Plan of Operations Number 05-72038 dated August 31, 1984. This operation consists of the Wizard and Magic claim groups. A. Dates of Operation Initial start up May 1985 Seasonal start up May 1985 Seasonal shutdown Oct 1, 1985 Final project completion and reclamation Unknown II .PRINCIPALS A. Operation and Ownership The following people will be associated with the activities conducted under this plan: Name Address Phone Status Rory Doremus 208/983-1158 1/2 Owner 114 So. Idaho Street Grangeville, ID 83530 ie = =! ll3a David Doremus 1/2 Owner 3575 Cahuenga Blvd. West Suite 125 Los Angeles, CA 90068 Authority to Obligate Resources of the Corporation Individuals authorized to enter into and execute any contract, undertaking, authori- zation, letter of intent, understanding, or approval, with the United States Forest Service on behalf of the Company shall be identified on a written and notorized Delegation of Signature Authority. A. Operation Representative Unless the operator is notified in writ- ing otherwise, the District Ranger is the Forest Service Representative to 1) receive notices, 2) take action in regard to the approved Plan, and 3) be readily available to the area _ (for assistance and consultation. When operations are in progress, the operator shall have aie representative ll4a named in writing, readily available to the area of the operation and authorized to ceveline notices in regard to perfor- mance under the Plan. III. Property or Area A. Claim Identification and Location All operations covered under this plan will be associated with the following claims: Claim Name/IMC Number/Legal Description Wizard #1 72083 NE4#, Sec. 27, T28N, RYE Wizard #2-5 62526- SW, Sec. 23, T28N, R9E 62529 Magic 86160 SW4, Sec. 23, T28N, RYE Map A vicinity map of this operation is attached and made part of this plan. IV. DESCRIPTION OF THE OPERATIONS A. Synopsis of the Operation The activities covered under this plan are for the exploration and development of a lode ore deposit. The exploration 115a activity will be conducted with a loader dozer. A small mill, floation cells, and table separation device will be used to extract gold from the ore. A settling pond will be used in conjunction with the mill. Ore will be stockpiled next to existing cabin and the pulp from the mill will be stockpiled on the old log landings and could be used in reclama- tion of the test holes. The area of exploration will be con- centrated to the clear cut. Exploration area is designated on attached map. The size of the test trenches will be appro- ximately 10' x 30°. Topsoil will be removed and piled separately from other overburden and used for,final reclama- tion. 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 disco- very pit. Only one discovery pit per 1l6a claim will be left open at a time. Dis- covery pits are excluded as trenches. Operator will reclaim all disturbed areas. B. Equipment to be used: a. A dozer will be used for trench- ing, mining, & reclamation. b. The milling process includes a impact mill, jaw crusher, floation cells, and a separation table. c. Two four wheel pickups dad. A pump will be used to pump water to a holding tank 1. Surface disturbances: Map No. Description Size l A small mill & table 126° 2 125° separation device with a settling pond Period of Disturbance: May 1985 - Continuing 2 Camp trailer 36°. 2. 30° Period of Disturbance: May 1985 - 117a Continuing 3 Stockpiles of ore & pulp 50' x 50' Period of Disturbance: May 1985 - Continuing 4 Exploration of vein/Less than } acre Period of Disturbance: May 1985 - October 1985 5 Road #9516 12' x 1/2 mile Period of Disturbance: May 1985 - Continuing C. Map A map showing the location where all planned activities will be conducted is attached and made part of this plan. D. Operational Components 1. Access Route, Road Construction, Road Maintenance The operator is authorized to wee existing System Roads and other means of access subject to rules and regulations established by the Forest Service. When commercially 118a hauling of ore or other products originating from this operation, the Operator shall perform or pay for road maintenance commensurate with Operator's use on roads controlled by the Forest pereise: Where reason- able access to the operations is not provided by existing System Roads that are open to the general public, said access may be authorized by Road Use Permit or approved Plan of Operations. No construction or improvement of roads, trails, bridges or any other means of access shall be used until approved in writing by the authorized officer except as specified in this Plan. a. Access Route Roads #1183 and #9516 shall be used throughout the operation. Drainage structures shall _ be constructed in the existing 119a claim access road, #9516. Main- tenance of Road #9516 and #1183, commensurated with use, shall be in accordance with c. Road Main- tenance. b. Road Control Devices The operator is required to maintain road closure devices on roads closed to public use but approved for use in this plan. The location of the road closure device is shown on the Project Area Map. If the Alpine Group does not fix the road closure device this season, operator will be liable to fix it. c. Road Maintenance Road maintenance is the preser- vation of the road _ facility including surface, shoulders, miscellaneous structures, drain- age, sight distance, and all 120a such traffic control devices required to ensure safe and efficient use by established road users and adequately pro- tect adjacent resources. Operator's maintenance respon- sibility shall cover the before, during, and after operation period during any year when operations and road use are per- formed under the terms of the Plan of Operations. Operator shall perform’ road maintenance work, commensurate with Operator's use, on roads controlled by Forest Service and used by Operator in connection with this operation. All maintenance work shall be done currently, as necessary, in accordance with specifications set forth herein or attached l2la hereto, except for agreed adjustments. Specifications applicable to roads used by Operator are as follows: Maintenance Specification No. Road # T-101 T-108 T-301 T-310 T-619 T-710 #9516 x Xx xX xX x xX #1183 X Xx Xx X X x dad. Temporary Road and “Trail Construction The location and clearing widths of all Temporary Roads or faci- lities shall be agreed to before construction is started. e. Temporary Road and “Trail Maintenance Operator shall perform or pay for raod and trail maintenance work, commensurate with Operator’'s use, on roads and trails controlled by § Forest 122a ss Service and used by Operator in connection with this operation. The road or trail will be main- tained in a condition equal to that of the road or trail imme- diately prior to use. Unless otherwise agreed, leadoff drainage and water barriers to prevent erosicn will be constructed on the road as directed by the Forest Service. Facilities a. Site Plan Attached maps show the location of all buildings, service ards, roads, and structures. No con- struction shall be undertaken by the Operator prior to site plan approval. b. Area Maintenance The area will be maintained to present a clean, neat, and 123a orderly appearance. Trash, debris, unuseable machinery, improvements, etc., will be disposed of currently. Hazardous Materials a. Storage Storage of fuel, and lubricants will be necessary on the project area. This storage shall be as specified below in Prevention of Oil Spills. b. Prevention of Oil Spills If Operator maintains storage facilities for oil or oil pro- ducts (gasoline) on Project Area, Operation shall «take appropriate preventive measure to insure that any spill of such oil or oil products does not enter any stream or other waters of the United States or any of the individual States. 124a Oil or oil products shall not be stored within 150 feet of any stream or other waters. Oil or oil products remaining after the operation shall be removed from National Forest Lands. If the total oil or oil products storage exceeds 1320 gallons or if any single container exceeds a capacity of 660 gallons, Operator shall prepare a Spill Prevention Control and Counter- measures Plan. Such plan shall meet applicable EPA requirements (40 CFR 112) including cer- tification by a registered pro- fessional engineer. 4. Safety The Operator's operations’ shall facilitate Forest Service's safe and practical inspection of Operator's ae : iatnaaccneaie | i | 125a operations and conduct of other official duties on the Project Area. Hazardous sites or conditions shall be marked by signs, fenced, or otherwise identified to protect the public. The following precautions to provide for public safety shall be taken: a. Existing mine shafts shall be fenced or fences repaired. b. Portals shall be equipped with doors or other devices, capable of preventing unauthor- ized access. 5. Solid Wastes a. Material Disposal a Waste material removed = from operations shall be deposited such that ‘no sediment shall enter any stream and so it can be used in the reclamation of area disturbed. Pulp from the 126a milling operation should be stockpiled on the logging land- ings. Structures and Occupance >. Structures No structures shall be built or maintained in the area of use or adjacent areas unless expressly permitted, in writing, by the authorized Forest Officer. The existing cabin on the Wizard claim will be used for the housing of the mill and table. Tools and supplies will be stored in tool shed. Personal conducting the operations under this plan will be living on the site in a trailer. b. Use of the Premises The following conditions will apply when camping on National Forest Land: 127a 1. Pit toilet. (a) Hole deep enough to meet the demands of the camp. (b) Daily use of lime in the hole. (c) Hole enclosed by a tarp, plastic or other suitable material. (d) Not within 100 feet of a live stream or draw, (e) If needed, insect and/or fly control. (f) At the end of the opera- tion, structures will be removed, holes filled and surrounding area returned to its natural state. 2. Garbage. (a) Put in an enclosed con- tainer or plastic bags. (b) No garbage thrown around the camp area. a ee eS ee eee ES SS eee ae a, 128a (c) Will be hauled weekly to a landfill dump. (ad) If needed, fly control. 3. Firewood (a) No live, green trees will be cut or cut into (chopped). (b) The inspector will designate wood that can be used. 4. No vehicle will be parked blocking a main road or access road. 5. Camp area will be as small as possible and not spread out over a large area. 6. No green trees will be used in camp construction unless designated by the inspector. 7. When removing camp, all garbage and other material 129a used in camp will be removed from campsite and placed in a landfill dump. 8. Area will be returned to near natural state. 9. Poles used in camp con- struction will be stacked. c. Year-Round Occupancy No year-round occupancy of the area and adjacent areas will be allowed unless permitted in writing by the Forest Service. dad. Garbage-Refuse The Operator shall pack out or otherwise remove from National Forest land all unburnable refuse resulting from operations under this plan. 7. Timber Timber requirements are small for this operation at this time. If timber is needed operator is asked 130a to cut small dead timber. The a. Slash Disposal Slash consists of all woody material standing or down resulting from Operator's acti- vities that exist on the project area and is not utilized in the mining operation. Operator shall treat or dispose of slash on project area in accordance with the following specific require- ments: Any slash from the cutting of mine timbers’ shall be knocked down to the ground and scattered. | Unless otherwise agreed in writing, Operator shall keep Slash disposal work current with timber cutting. Water Requirements water source will be from l3la Streckner creek and will supply the mill operation and campsite. Approx- imately 1,000 gallons per week will be needed to run the mill operation. V. MITIGATION MEASURES A. Cultural Resources The operator shall cease operations and immediately notify the Forest Service Representative upon the discovery of any cultural or natural history resource within the area covered by this Plan. B. Erosion Prevention and Control Operator's activities shall be conducted reasonably to minimize soil erosion. Equipment shall not be operated when ground conditions are such that excessive damage will result. The kinds and intensity of erosion control work done by Operator shall be adjusted to ground and weather conditions and the need for controlling runoff. Erosion control work shall be kept current after 132a October 1 of each year. If Operator fails to do seasonal erosion control work prior October 1, Forest Service may temporarily assume respon- sibility for the work and any _ bond hereurder may be sean by Forest Service to do the work. If needed for such work, Operator shall make additional deposits on request by Forest Service. 1. Erosion Control Seeding Following completion of annual mining activity but no later than October 1, areas of exposed raw soil on areas disturbed by the operation shall be scarified, seeded, and fer- tilized as needed. Soil on areas to be seeded shall be left in a rough- ened condition favorable to the retention and germination of the seed. The amount, rate, species mixture, and kind of fertilizer shall be we 2 eax - . — Cc. 133a approved by the Forest Service prior to use. Seed and fertilizer shall be spread evenly at the rate approved. When fertilizer and seed are applied in separate operations, the second operation shall be carried out within 72 hours of the first. Appli- cation shall be during the period September 15 to October 1 unless otherwise approved by the Forest Service. No application work shall be done him can extremely windy or rainy weather, or when the ground is frozen or otherwise unsuitable. Fire Prevention and Control Operations shall comply with all appli- cable Federal and State fire laws and regulations. All reasonable measure to prevent and suppress fires on the area of operations shall be taken by all employees, contractors, and subcontrac- tors. 134a 1. Normal Fire Precautions Specific fire precautionary measures are set forth below. Upon request of Forest Service, Operator shall per- mit and assist in periodic testing and inspection of required fire equipment. Operator shall promptly remedy deficiencies found through such inspecting and testing. a. Fire-Tool Caches During the fire season, as deter- mined by the Forest Service, the Operator shall furnish and main- tain in serviceable condition a fire-tool box and fire tools to be used only for suppression of forest fires. The toolbox shall be located at the site and will contain the following tools: One - Axe, double bit 34# Two - Shovels (round point #0 lady or equal) 135a Two - Pulaskis One - fire extinguisher, dry chemical type of not less than 5 pound capacity with 10 A.B.C. or higher rating. b. Spark Arrester and Engine Mufflers A muffler or spark arrester satisfactory to the Forest Service shall be maintained on the exhausts of all trucks and tractors or other internal com- bustion engines used in connec- tion with this operation. c. Smoking Smoking shall not be permitted within Project Area except on surfaced or dirt roads, within Closed vehicles, in camps or at other posted places. Smoking shall not be permitted while working or traveling on foot, ll a i i Le 4). tee Deel. = 136a within or through Project Area. d. Debris Around Buildings The grounds around buildings, tents, and other structures shali be kept free of flammable material for a distance of at least 15 feet from the wall of such structures. e. Storage of Petroleum and Other Highly Inflammable Pro- ducts Gasoline, oil, grease, or other highly flammable material shall be stored either in a separate building, or at a site where all combustible debris and vegetation is cleared away within a radius of 25 feet. Fire extinguishers and/or sand barrels may be required at such locations specified by Forest Service, when unusually hazar- dous conditions exist. 137a f. Campfires Fires shall not be built outside the designate bivouac areas without the specific approval of the Forest Service. 2. Fire Prevention and Suppression The Operator shall do everything reasonably within its power and shall require its employees, con- tractors, and employees of contrac- tors to do everything reasonably within their power, both indepen- dently and upon request of the Forest Service to prevent and suppress fires on or near. the Project Area. 3. Emergency Precautions Forest Service may require’ the necessary shutting down of all or portions of Operator's activities based on predicted fire weather changes. 138a D. Fisheries and Wildlife All practicable measures shall be taken to maintain and protect fisheries and wildlife habitat which may be affected by the operations. 1. Protection of habitat of Endan- gered Species Measures to protect special areas needed by plants or animals listed as threatened or endangered under the Endangered Species Act of 1973 are as follows: All personnel associated with the operation shall be informed that wolves may be present, that they are an endangered species, and that they are protected by law. If protection measures prove inade- quate, if other such areas are discovered, or if new species are listed on the Endangered Species 139a List, Forest Service may suspend this operation until a modification is approved to provide additional protection regardless of when such facts become known. Discovery of such areas by either party shall be promptly reported to the other party. E. Scenic Values Operations shall harmonize with the sce- nic values, to the extent practicable, through such measures as the design and location of operating facilities, including roads and other means of access, vegetative screening of opera- tions, and construction of structures and improvements which blend with the landscape. F. Solid Wastes Operations shall comply with applicable Federal and State standards for the disposal and treatment of solid wastes. 140a All garbage, refuse, or waste, shall either be removed from National Forest lands or disposed of or treated so as to minimize its impact on the environment and the forest surface resources. All tailings, dumpage, deleterious mater- ials, or substances and other wastes shall be deployed, arranged, disposed of or treated so as to minimize adverse impact upon the environment and forest surface resources. G. Water Quality Operations shall comply with applicable Federal and State water quality stan- dards, including regulations issued pur- suant to the Federal Water Pollution Control Act, as amended. 1. Streamcourse Protection Unless otherwise agreed, the following measures shall be observed to protect all streamcourses: a. Opeator's activities shall l4la be conducted to prevent debris from entering streamcourses, except as may be authorized under paragraph c. In _ event Operator causes debris to enter streamcourse in amounts which may adversely affect the natural flow of the stream, water quality, or fishery resource, Operator shall remove such debris as soon as practicable, but not to exceed 48 hours, and in an agreed manner that will cause the least disturbance to -Streamcourses. b. Wheeled or track-laying equipment shall not be operated in streamcourses except at crossings designated by Forest Service or as approved elsewhere in this Operating Plan. c. Flow in streamcourses may be 142a diverted only if such diversion is necessary for approved mining activities, Forest Service gives written authorization, and Operator has an approved Stream Alteration Permit from the Idaho Department of Water Resources. VI. RECLAMATION Upon exhaustion of the mineral deposit or at the earliest practicable time during operations, or within one year of the conclusion of operations, unless a longer time is allowed by the authorized officer, operator shall reclaim the surface disturbed in operations by taking such measures as will prevent or control onsite and off-site damage to the environment and forest surface resources. A. Roads Unless otherwise approved by the authorized officer, roads no_ longer needed for operations: 143a 1. Shall be closed to normal vehi- cular traffic. 2. Bridges and culverts shall be removed. 3. Cross drains, dips, or water bars shall be constructed. 4. The road surface shall be shaped to as near a natural contour as practicable and be stabilized. B. Other Disturbed Areas All other disturbed areas shall be reshaped to approximately the same ori- ginal controu and revegetated. Erosion control measures shall be taken to pre- vent any sediment from entering streams. B. Revegetation Within two years after reclamation 40-50% of the ground should be covered with grass and trees native to the area. VII. ACKNOWLEDGEMENTS A. Bonds A bond in the amount needed to perform 144a the reclamation and mitigation work for the entire project may be required before the Plan of Cperation is approved. The value of the bond may be ajusted, subject to Forest Service approval, to an amount needed to reclaim existing disturbances and the next Season's proposed work as identified in the attached reclamation bond worksheet. B. Cessation of Operations Unless otherwise agreed to by the authorized officer, operator shall remove within one year following cessa- tion of operations all structures, equipment, and other facilities, and clean up the site of operations. Other than seasonally, where operations have ceased temporarily, a statement shall be filed with the District Ranger which includes: 1. Verification of intent to main- tain the structures, equipment, and 145a other facilities, 2. The expected reopening date, and 3. An estimate of extended duration of operations. , A statement shall be filed annually in the event operations are not reacti- vated. The operating site, structures, equipment, and other facilities shall be maintained in a neat and safe condition during nonoperating periods. C. Claim Ownership Approval of this Plan of Operations does not constitute certification or recogni- tion of ownership to any person named herein. When another party asserts a title interest in the area covered by this Plan, it will be the sole respon- sibility of the concerned parties to resolve such conflict before proceeding with claim development. D. Claim Validity Approval of this operating plan does not De Pe ee ee ee ee, ee ee 146a constitute now or in the future recogni- tion of or certification of the validity of any mining claim to which it may relate or to the mineral character of the land on which it lies. E. Noncompliance Operator's failure to comply with the approved Plan invalidates the Plan and may result in the suspension of all or part of the operation. Notification of noncompliance and all necessary action on the part of the operator to return to compliance shall be provided in writing by the Forest Service to the operator. The Forest Service may elect to use the Reclamation Bond to restore resources disturbed by the unauthorized activity. F. Notices Notices by either party shall be in writing to the other party's designated representatives. 1. Site inspections conducted by 147a the Forest Service shail be docu- mented on the Minerals Plan of Operations Inspections Report (Form R1-FS-111-2800-8) with a copy pro- vided to the operator in the field. G. Plan Revision Should the nature of the operation change, a modified or supplemental plan may be required. The Plan of Operation may be amended at any time subject to the approval of the Forest Service. Proposed revisions must be in writing and must reference the sapktaibea sec- tion of the current approved Plan. Where appropriate, the map shoul) also be amended. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2820%3A1. Public record. Not legal advice.