Amicus Curiae Brief — Doremus v. United States

Su reme Court, U.S.

ts 2

%) (%) CEC 12

Nos. 90-453 and 90-466 JO@HPH F. SPANIOL, UR.

- _ Ft ie <x

IN THE

Supreme Court of the United States

OcToBer TERM. 1990

RORY DOREMUS (No. 90-453),

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

and

DAVID DOREMUS (No. 90-466),

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF WESTERN MINING COUNCIL, INC.,

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

ROBERT A. SANREGRET

Counsel of Record

Law Offices of ROBERT A. SANREGRET

Second Floor

316 West Fourth Street

Santa Ana, California 92701

(714) 547-8451

Attorney for Amicus Curiae

WESTERN MINING COUNCLL, INC.

Lawyers Brief Service / Legal Printers / (213) 383-4457 / (714) 720-1510

Nos. 90-453 and 90-466

IN THE

Supreme Court of the United States

OcTOBER TERM. 1990

RORY DOREMUS (No. 90-453),

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

and

DAVID DOREMUS (No. 90-466),

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF WESTERN MINING COUNCIL, INC.,

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

ROBERT A. SANREGRET

Counsel of Record

Law Offices of ROBERT A. SANREGRET

Second Floor

316 West Fourth Street

Santa Ana, California 92701

(714) 547-8451

Attorney for Amicus Curiae

WESTERN MINING COUNCIL, INC.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ...... ii

INTEREST OF AMICUS CURIAE .... 1

WRIT CERTIORARI SHOULD BE GRANTED:

A. PETITIONERS' CONVICTIONS

ARE UNCONSTITUTIONAL,

BECAUSE THEY ARE UNSUP-

PORTED BY LAW OR EVIDENCE,

AND PETITIONERS' ACTS WERE

AUTHORIZED UNDER THE MINING

LAW . * oJ . . a o . . . . * 6

B. THE LAWS AND FOREST SER-

VICE REGULATIONS WERE AP-

PLIED IN AN ARBITRARY AND

DISCRIMINATORY MANNER IN

THIS CASE ..+.-+-e+«-e+-e« ec «© « Ll

C. THE ISSUES PRESENTED HERE-

IN ARE OF CRITICAL IMPORT-

ANCE TO MINERAL EXPLORATION

AND DEVELOPMENT IN THIS

COUNTRY AND TO THE PRODUCT-

IVITY AND SECURITY OF THE

UNITED STATES ....+ «+ « 21

CONCLUSION ... +6 «© «© © «© «© «© « 32

TABLE OF AUTHORITIES

Page

Cases

First Evangelical Church of

Glendale v. County of Los

Angeles, 482 U.S. 384

(1987) . . . . eo . 7 . + = s . 29

Nollan v. California Coastal

Commission, 483 U.S. 825 (1987) . 29

United States v. Caruthers,

523 F.2d 1306 (9th Cir. 1975) .. 8

United States v. Craig,

CR-82-8-H (D.C. Montana 1984) .. 6

United States v. Patrin,

Civil No. 1=-72-135

(D.C. Idaho 1974) * e . o ° o . a 6

United States v. Weiss,

642 F.2d 296 (9th Cir. 1981). . 6,10

Wilber v. United States ex rel.

Krushnic, 280 U.S. 306, 316

(1930) . . . . os o os * * 7. o 7 . . 29

Yick Wo v. Hopkins,

118 U.S. 356 (1886) .....e. 11,12

Statutes

30 J.8.C. § 21, et seq. ... . 7,20

ii

30

30

30

43

36

36

36

36

36

36

36

U.S.C.

U.S.C.

U.S.C.

U.S.C.

C.F.R.

C.F.R.

C.F.R.

C.F.R.

C.F.R.

C.F.R.

C.F.R.

U.S. Const.

Exec.

Beene 6) eS eh eater ene. 7

612,. « «© « « « 7,8,9,10

aes «4 + * 3 eS Ce

Re: a. ea oe ere

Regulations

S63 « ss 6s * « ieee

261.1(a). .. . ». Passim

261.1(b). « «© «© 9,10,15

peaeeqars 8s 60° eu SR

261.6(B). «© «© s ee « 9

261.9(a). « «© « «© « 9,10

261.10(K). « «© «© « 9,10

U.S. Constitution

amend. V. . « « « « « 29

Other

Order No. 12630, Fed.

Register (March 16, 1988). ... 28

Forest Service Manual,

§ 2813.14.

. * . . o 7 o s . . 13

Forest Service Manual,

§ 2814.21.

. * « a * . o . a 13,14

Forest Service Manual,

§ 2814.24

Ss O° 2 2 2 Re 13,14,15

iii

No. 90-453 and 90-466

| IN THE

| Supreme Court of the United States

| OCTOBER TERM, 1990

RORY DOREMUS, Petitioner (No 90-453)

VS.

UNITED STATES OF AMERICA, Respondent.

and

DAVID DOREMUS, Petitioner (No. 90-466)

VB.

UNITED STATES OF AMERICA, Respondent.

BRIEF OF THE WESTERN MINING

COUNCIL, INC., AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS' REQUEST FOR

A WRIT OF CERTIORARI

The Western Mining Council, Inc.,

files this brief as amicus curiae in

support of the Petitioners' request for

1

ieee

a Writ of Certiorari. Consent to file

the brief has been obtained from the

attorney for Petitioner Rory Doremus,

from Petitioner David Doremus, and from

the attorneys for Respondent United

States of America.

The Western Mining Council, Inc., is

a California non-profit corporation re-

presenting United States citizens who

conduct mineral exploration and mineral

development on the public lands of the

United States, including on public land

in the National Forests. The menbers of

the Western Mining Council are some of

the thousands of American citizens who

explore for minerals and develop mines

in the vast and largely unexplored for-

ests, mountains and deserts of the Wes-

tern United States. The Western Mining

Council includes many individuals, small

businesses, smaller companies (less than

i

50 employees), and many family or "mom=

and=pop" mineral exploration and devel=

opment businesses.

The Western Mining Council is con=

cerned with the acts of unfair and

unlawful discrimination against mineral

prospectors and developers on public

land, including tactics of the United

States Forest Service ("Forest Service")

specifically directed against thousands

Of small businesses and mineral dev=

elopment businesses. These tactics

include the Forest Service's aggressive

and wrongful enforcement of inapplicable

criminal laws, the issuance of wrongful

criminal citations against mineral

developers and the imposition of

unreasonable restrictions and conditions

on operating plans and pernits to do

mineral prospecting and mining in the

we Sint NG 8. a ORRIN ARNE A

National Forests. The purpose of this

brief as amicus curiae is to discuss how

inate

the issues in this case and the Forest

Service's continuing unreasonable ac-

tivities are devastating and destroying

the mineral exploration and development

industry in the United States, to the

detriment of the miners, the local

economies, small businesses, and which

are seriously detrimental to the

productivity and security of the United

States of America. The Forest Service

is seriously inhibiting mineral explora-

tion and development in the United

States at a time when this country

critically needs to encourage mineral

development and production and to

encourage small business generally.

The Western Mining Council re-

spectfully requests that this Court, in

rendering their opinion and in reviewing

the Petitioners' convictions for

removing trees from their valid mining

Claims, clarify the right of private

mineral developers relative to plans of

operations without the necessity of a

separate permit or plan amendment for

each necessary act or for each tree

which the miner finds reasonably

necessary to remove, and confirm the

inapplicability of certain criminal laws

in the National Forests.

The existing Forest Service policy

of aggressive issuance of citations for

minor criminal offenses against miners

in the National Forests, and the app-

lication of arbitrary criteria for

"conditions" on operating plans imposed

upon miners by local officers of the

Forest Service, have created ambiguity,

disputes and abuse by local Forest

Service officers. Examples of such

ambiguity and disputes are the instant

case and the multitudes of other cases

of petty offense violations and disputes

over plan of operation conditions,

including those examples referred to in

the opinions in United States v. Craig,

CR-82-8-H (D.C. Mont 1984), in United

States v. Patrin, Civil No. 1-72-135

(D.C. Idaho 1974), in the facts in the

case reported by the court in United

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

1981), in the facts in other cases cited

in the briefs of both Petitioners in

this petition, and, thousands of

unreported field incidents. For these

reasons, this court's review is needed,

and the Western Mining Council submits

this brief in support of the

Petitioners’ request for a writ of

certiorari.

The government's hearing evidence

before the U.S. Magistrate did not meet

the burden of proof that the Petition-

ers' activities were unreasonable and

unnecessary to the operation of their

valid unpatented mining claims. The

evidence did not show any illegal act-

ivity by either defendant, and the

evidence showed that the acts of the

Forest Officers were unjustified and il-

legal.

The mining claims of the Petition-

ers were valid, and the validity is not

an issue here. These unpatented mining

Claims were being developed under the

specific provisions of the General

Mining Law (30 U.S.C. §21, et seq., as

amended). The rights of individuals

under the Mining Law have been speci-

fically reaffirmed by Congress many

times, notably including reaffirmation

in 1955 in 30 U.S.C. § 612, in 1970 in

30 U.S.C. § 21(a), in 1976 in 43 U.S.C.

§ 1732, and in 1980 in 30 U.S.C. § 1601.

The Forest Service regulations thenm-

selves specifically provide that

",..{njothing in [36 C.F.R. § 261] shall

preclude activities as authorized by...

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

amended."

The activities of the Petitioners

were authorized by the Mining Law and by

numerous judicial reaffirmations there-

of, as established in the express hold-

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

(9th Cir. 1975), that the statutory

authority granted to the owner of a

mining claim under 30 U.S.C. § 612,

precluded the owner's criminal con-

viction for the removal of trees from

his claim. The activities of the

instant Petitioners were also authorized

under the Forest Service regulations

themselves. Since the Petitioners' ac-

tivities were not shown to be un-

— ooo

reasonable or illegal, the Petitioners

cannot be prosecuted for these acts.

The Court of Appeals upheld the

instant criminal convictions based upon

Petitioners' alleged violations of 36

C.F.R. §§ 261.9(a) and 261.10(k), which

prohibit "...[{dJamaging any natural

feature or other property of the United

States" (36 C.F.R. § 261.9(a)), and ™..

[vjiolating any term or condition of

--.-{an]) approved operating plan." (36

C.F.R. § 261.10(k)). Petitioners' con-

victions under 36 C.F.R. §§ 261.9(a) and

261.10(k) conflict with, and are

specifically preempted by, 36 C.F.R. §§

261.1(b), 261.6(a), 261.6(b), 261.9(a),

and 30 U.S.C § 612. 36 C.F.R. §261.1(b)

provides that "... [njothing in this

part [{i.e., 36 C.F.R. §261] shall

preclude activities authorized by ...

the U.S. Mining Laws Act of 1872 as

amended." 30 U.S.C § 612(a) prohibits

removal of vegetation "... [e]xcept to

the extent required for mining clain-

ant's prospecting, mining, or processing

operations and uses reasonably incident

thereto, ... or to provide clearance for

such operations or use." So, contained

within 36 C.F.R. § 261 is the specific

authority that any conflicting provis-

ions of § 261 will be preempted by the

Mining Law.

The court in U.S. v. Weiss, supra,

at 299, stated that 36 C.F.R § 261.1(b)

is a recognition that mining operations

",.. may not be prohibited nor unreason-

ably circumscribed as to amount to a

prohibition." That acknowledgement

clearly establishes the supremacy of the

General Mining Law's provisions over the

restrictive and conflicting prohibitions

contained in the regulation in 36 C.F.R.

§§ 261.9(a) and 261.10(k).

10

B. THE LAWS AND FOREST SERVICE

REGULATIONS WERE APPLIED IN

AN ARBITRARY AND DISCRIMIN-

ATORY MANNER IN THIS CASE.

Petitioners' convictions are uncon-

stitutional in that the Forest Service,

in issuing Petitioners a criminal ci-

tation, applied its regulations in an

arbitrary and discriminatory manner in

violation of the doctrine of equal pro-

tection of the laws under the United

States Constitution. The long line of

cases of illegal government discrimina-

tion based upon race is useful in ana-

lyzing the instant case. In an early

discrimination case, Yick Wo v. Hopkins,

118 U.S. 356 (1886), the Supreme Court

invalidated a San Francisco city ordi-

nance which allowed the rejection of a

permit for Yick Wo to operate a laundry

in a building not constructed of brick

or stone, where the authorities approved

laundry permits for non-Chinese persons

11

to operate in such buildings while re-

jecting all applications by Chinese.

The court reasoned that "... the idea

that any man's livelihood depends upon

the mere will of another is the essence

of slavery ... {if the disapproval be

administered] with an evil eye and an

Unequal Hand ...", and that such would

be an unconstitutional denial of equal

justice.

The Yick Wo and the instant Doremus

cases are analogous in that, while not

racially motivated, the Forest Service

in the instant case is arbitrarily,

intentionally and unlawfully preventing

particular persons, ji.e., mineral pros-

pectors and developers, from validly

exercising their rights under the Mining

Law and the U.S. Constitution. The

Forest Service's issuance of arbitrary

citations and their placing of

unjustified "conditions" upon miners’

12

operating plan "approvals" under 36

C.F.R. § 261.1(a), are nothing more than

arbitrary de facto denials of citizens'

rights to conduct good faith mineral

exploration and mining in the National

Forests. The preventing of the

Petitioners from operating on their

valid mining claims in the National

Forest by the means of criminal cita-

tions for alleged petty offenses and by

unreasonable operating "conditions" is

somewhat more sophisticated that the

denial of Yick Wo's laundry permit, but

each is a wrongful deprivation of rights

by a government agency. The eco

Doremus case demonstrates most clearly

the arbitrary and unconstitutional dis-

crimination against mineral prospectors

and miners in the National Forests,

particularly in view of the specific

mandate in its own Forest Service Manual

($§ 2814.21 and 2814.24) to "... respect

13

{(mining] claims and claimants' property

--." and to provide to "... prospectors

and miners operating plan provisions in

order that they may carry out necessary

mineral associated activities." The

express Forest Service policies are set

out in the United States Forest Service

Manual, in the regulations and in the

statues, including the following:

"The right of reasonable access

for purposes of pg gegtcas F

locating and mining is provided

by statute." Forest Service

Manual, § 2813.14;

"The Forest Service must respect

Claims and claimants’ property

by using precautions to avoid

Gamage to claim corner markers,

excavations, and other mining

and improvements." Forest

Service Manual, § 2814.21;

"Forest officers should provide

bona fide prospectors and miners

reasonable alternative access

routes, exploration methods,

special use permits, and

operating plan provisions in

order that they [{i.e., the

prospectors and miners) may

carry out necessary mineral as-

sociated activities without

violation of laws and regu-

lations." Forest Service Man-

14

dob Eee PMI A Jone: ‘

wie: 0 OS lA TI ok ONE tte Aw

ual, § 2814.24;

“Nothing in 36 C.F.R. § 261

shall preclude activities as

authorized by the Wilderness Act

of 1964 or the U.S. Mining Laws

Act of 1872, as amended," 36

C.F.R. § 261.1(b).

These statements of law and policy

are very clear and unequivocal, and must

be held to override the arbitrary "“un-

written" power of local Forest Service

officers to issue arbitrary citations or

to attach unworkable or unreasonable

conditions to the “approval” of a

miner's otherwise reasonable plan of

operations under the purported authority

Of 36 C.F.R. § 261.1(a).

The local Forest Officer has been

given the power to “approve” the miner's

plan of operations, or to "... place

such conditions on the authorization as

the officer considers necessary for the

protection or administration of the

National Forest System, or for the

promotion of public health, safety or

15

welfare." 36 C.F.R. § 261.1(a).

The authority of a Forest Service

officer to determine whether a specific

activity is “... damaging any natural

features" or "... violating any term or

condition of ... [an] approved opera-

ting plan ..." under 36 C.F.R.

§ 261.1 (a) was clearly too broad and

vague on its face to be reasonable or

workable. In the instant case, the

direct and immediate effect of the

"conditions" imposed upon the Doremus

brothers by the Forest Officer under the

authority of 36 C.F.R. § 261.1(a) was to

deprive the Doremus brothers of their

chosen livelihood of reasonably develop-

ing unpatented mining claims in the

National Forest. As set out in the

trial transcript, and as is patently

obvious, although technically "pos-

sible," it is not reasonably feasible

for a miner to stop all mining

16

operations in order to reapply for a

plan amendment each time it becomes

reasonably necessary to cut down an

unanticipated tree or to dig another

reasonable trench. To impose such a

requirement on miners would frustrate

mining operations to such a degree as to

make them economically prohibitive, and

such a requirement would terminate many

legitimate mineral exploration and

development operations=<a result which

the Forest Service regulations, public

policy, common-sense national survival

instinct and the U.S. Constitution

specifically forbid.

This court's reversal of the two

Petitioners' erroneous convictions in

this case would partially alleviate the

Doremus brothers' current impediment to

carrying on their livelihood as virtual-

ly the last remaining miners in the Nez

Perse National Forest in Idaho.

17

However, the Western Mining Council

is gravely concerned that the rights of

the Doremus brothers, and of all other

mineral developers in the National

Forests in the United States, are

seriously endangered, and that these

rights should be clarified reiative to a

citizen's right to prospect and mine in

a National Forest under the Mining Law,

specifically including a miner's right

to legally cut some trees in the reason-

able development of his mining clain.

The Western Mining Council hereby

respectfully requests that this Court,

in granting certiorari and in accepting

in this case, specifically delineate

reasonable criteria which apply to the

facts in this instant Doremus case, as

well as to other mineral prospectors and

miners, relative to their rights to

prospect and mine in National Forests

under the Mining Law, free from unlawful

18

oe ae,

restriction. This Court should define

and delineate the limited permissible

scope of Forest Service control over

mineral exploration and development in

National Forests; and the result would

be guidelines obviating many detrime-

ntal and economically fatal delays and

difficulties such as those experienced

by the Petitioners in the instant case,

and by many others.

The Forest Service "petty offense

violation" procedures, when combined

with other tactics as set out in the

hearing transcript in this case, clearly

show the potential and actual abuse and

"arbitrariness," particularly when the

same Forest Service officer who

administers and writes up the "plan

conditions" also writes the citations.

Many federal administrative agen-

cies “administer” all three functions of

government (executive, legislative and

19

judicial) within the province of the

tasks delegated to them by Congress.

However, the opportunity for arbitrary

action, and specific instances of abuse,

must be fully considered when reviewing

such a broad "sub-sub-delegation" of

power as the instant regulations

empowering the local Forest Service

officer to issue citations, and, also,

to "place such conditions" on his

approval of the operating plan as "the

officer considers necessary for the

protection or administration of the

National Forest System, or for the

promotion of public health, safety, or

welfare." (36 C.F.R. § 261.1(a)).

If a Forest Service officer chose

to prohibit all mineral exploration and

development in "his" National Forest, it

would be, and is, all too easy for him

to do so by issuing citations for

alleged petty offenses, and by imposing

20

difficult plan conditions under the

overly broad and vague delegation of

multiple powers to Forest Service

officers under 36 C.F.R. § 261.1(a).

The instant case cries out for

clarification of the scope of Forest

Service authority to arbitrarily deny to

mineral developers the reasonable free-

dom of activity upon which their liveli-

hood depends; and this case is just such

an opportunity for this Court.

C. THE ISSUES PRESENTED HEREIN

ARE OF CRITICAL IMPORTANCE TO

MINERAL EXPLORATION AND

DEVELOPMENT IN THIS COUNTRY AND

TO THE PRODUCTIVITY AND

SECURITY OF THE UNITED STATES.

The significance of the issues pre-

sented herein cannot be minimized at a

time when this country's future pros-

perity, economic well-being and military

security rest so squarely on our ability

to continue to efficiently explore for

and supply minerals to our country.

21

The primary source of minerals in

the United States is the public lands

which are open for mineral exploration

and development. This country depends

upon our incentive-based Mining Law to

motivate citizens to explore for

minerals, to develop mining operations

and to provide the United States with a

reliable continuous flow of minerals for

industrial, commercial and military

uses.

If mineral development is further

impeded in the United States, the result

will be the loss of future discoveries

and development of those minerals vital

to the productivity and security of this

country. Forest Service practices have

already terminated most mineral explor-

ation and development in National For-

ests by issuing "fatal" criminal cit-

ations for alleged minor offenses and by

placing overly restrictive conditions on

22

plans of operation. The Forest Service

has effectively eliminated thousands of

mineral development operations on our

public lands, including those of the

Doremus brothers, who had maintained

"virtually the last of the operating

mine in the Nez Perce National Forest in

Idaho." The instant case is an example

of arbitrary over-regulation of mineral

development through the use of unjust-

ified criminal citations and unreason-

ably restrictive conditions on plans of

operation. These violations of the

express mandate of the Mining Law, and

the express letter and spirit of the

Forest Service Manual, have "thrown out"

large numbers of mineral developers and

miners from public land in the National

Forests.

Our National Forests do not "belong

to" the Forest Service, they are public

land open to mineral exploration by U.S.

23

ai aaa iia

citizens under the Mining Law. Because

the Forest Service literally "loses con-

trol" of the land when minerals are dis-

covered, a "turf war" results when a

mineral developer seeks a Forest Ser-

vice permit, because the Forest Service

controls only the land surface, and want

to "keep" control. The result is not

only a "chilling" effect, but the

absolute destruction of a large majority

of the legitimate mineral developments

on "Forest Service" land, causing a

substantial reduction of mineral

exploration and development in the

United States.

It is essential to the security and

productivity of the United States that

we maintain and increase our mineral

exploration and development in this

country in order to prevent the United

States from becoming dependent upon and

subservient to foreign sources for

24

. eT a ee

ee ee ee eS

inlet — —_

ne ee ee eee ee ee

minerals.

Despite the expressly stated U.S.

policy of encouraging mineral explora-

tion and development, recent substantial

decreases in mineral development has re-

sulted in the loss of thousands of jobs

and small businesses, which have been

"exported" overseas. Foreign nations

are more than anxious to develop their

own mineral resources and to sell their

minerals to the United States. In Sep-

tember 1990 Mexico dropped their "51%

Mexican ownership" requirement to en-

courage their own mineral development,

and now allows 100% non-Mexican

ownership of mineral operations.

Vigorous recent foreign mineral

development combined with obstructive

U.S. governmental actions is resulting

in the following devastating long-term

detrimental effects and costs to the

United States and to its citizens:

25

Cost _#1--Dependence Upon Foreign

Sources for Minerals. Probably the most

serious effect of the devastation of the

U.S. mineral exploration and development

industry is the increased dependence of

the United States upon, and subservience

to, unreliable and unpredictable foreign

sources for essential minerals and rare

earths indispensable to maintaining our

dominant position in military hardware,

space technology, nuclear fusion and

superconductivity. We cannot fault

Mexico developing their minerals. Ra-

ther, we should seek to decrease our own

dependence upon and our potential sub-

servience to foreign sources for essen-

tial minerals from South Africa, the

Soviet Union, Mexico and, recently, even

from Mongolia and Vietnam. No dollar

value can be placed upon the U.S.

retaining its position as the world

leader in high technology research,

26

security and national defense. The list

of affected minerals is long and varied,

including: Iron ore, rare earths,

rhodium, palladium, other platinum group

metals, precious metals, talc, titanium,

chromium, and others.

Cost #2 -- Increased Prices of

Minerals. Dependence upon foreign

mineral sources will result in the

increased cost of many essential

minerals and rare earths, with prices

continuing to rise because of the

disappearance of the supplies and iden-

tified future sources of these minerals

from the United States public lands.

The U.S. will then be subject to the

uncertainties of unreliable foreign

sources and cartels for many essential,

critical and strategic minerals, just as

we were in the oil "shortage" of the

1970's, and as we are today dependent

upon South Africa and the Soviets for

27

virtually all of our chromium and rho-

dium. The price of rhodium has sky-

rocketed from $1,300/ounce in November

1989 to $6,000-$7,000/ounce today, and

is expected to rise even more soon.

— “ “

Many of the restrictions and regulations

which destroy and close down mineral

development operations in the United

States have resulted in compensable

takings under the Fifth Amendment.

Executive Order No. 12630 (Fed. Reg-

ister, March 16, 1988), as reissued by

President Bush in 1990, requires that

all federal agencies provide a specific

written Taking Implication Assessment

("TIA") on the effect of agency regula-

tions and decisions on the taking of

private property, explicitly identifying

and including "regulatory takings" as

compensable. This court has specifi-

cally held that it "... is established

28

by innumerable decisions of this court

and of state and lower courts that ...a

mining claim ... is property in the

fullest sense of that term." (Wilbur v.

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

306, 316 (1930)). The courts fully re-

cognize the compensability of takings

and “regulatory takings," as was ag-

gressively reaffirmed by the recent line

of cases starting with the two June 1987

decisions First Evangelical Church of

Glendale v. County of Los Angeles, 482

U.S. 384 (1987) and Nollan v. California

Coastal Commission, 483 U.S. 825 (1987).

It is clear that the United States or a

state can take any property it chooses

for a public use; but, "...private

property may not be taken for public use

without just compensation." (U.S. Const.

amend. V.) So, we have the resultant

critical dual reasons why mining claims

should not be restricted and be taken,

29

i.e., these takings will cost the

taxpayers many billions of dollars, and,

secondly, the mineral exploration,

development and productivity of the

United States will be seriously hurt.

Homelessness. Thousands of American

jobs have already been lost and persons

made homeless by arbitrary restrictions

placed upon mineral exploration and

development. Particularly hard hit are

U.S. small businesses, independent

family mining businesses, mineral dev-

elopment companies, related service and

support businesses, and, of course, the

thousands of future prospective mineral

exploration and development businesses.

Most of these private future losses of

businesses, income and property will be

non-compensable takings.

Absent effective and continuing

mineral exploration and development the

30

ee em ee ETE ee ET rE eee

United States will be faced with the

following: Swubservience to foreign

sources for essential minerals; higher

mineral prices; greater world-wide en-

vironmental pollution due to minimal

foreign environmental controls and mil-

lions of gallons of diesel fuel used in

shipping foreign minerals for ultimate

consumption in the United States; bil-

lions of dollars of takings and "regu-

latory taking" of mining operations;

decreased U.S. productivity and G.N.P.;}

decreased U.S. security resulting from

dependence upon foreign sources for

essential minerals; and an increased

U.S. trade deficit resulting from buying

foreign minérals while ours lie "fallow"

on U.S. public lands. This country's

vitality and world leadership position

can only be maintained by adhering to

the established public policies of

encouraging and assisting mineral

31

exploration and development and by

prohibiting the disabling practices and

arbitrary actions of governmental

agencies, specifically including the

actions of the Forest Service in the

instant Doremus case.

CONCLUSION

The Petitioners' criminal convict-

ions, although seemingly simple and iso-

lated, could have a profound and lasting

effect upon the United States. Just as

freedom of speech is chilled by each act

of censorship, so the productivity of

this country is quelled by acts which

interfere with the citizens' rights to

explore for minerals under the incen-

tive-based Mining Law.

On behalf of those persons who

choose mineral exploration and develop-

ment on public land as their livelihsod,

including the Petitioners, the Western

Mining Council respectfully requests and

32

_————— ee eS ee ee ee

implores this court to grant certiorari

in this case, to provide an opportunity

to clarify the validity of Forest

Service practices of imyosing arbitrary

repressive conditions on plans of

operation and of issuing unjustified

criminal citations. This court should

consider the strong public policy, and

the specifically stated legislative

policy, of encouraging mineral ex-

ploration and development on U.S. public

lands.

This instant Doremus case cries out

for Court direction to stop the misuse

of bureaucratic devices which "chill"

and destroy legitimate and desperately

needed United States mineral exploration

and development. This case demonstrates

the need for a more detailed speci-

fication of the requirement that the

Forest Service respect and encourage

mineral development in the National

33

Forests.

The Petition for Writ of Certiorari

should be granted, and the judgments and

rulings below should be reversed.

Thank you for allowing the Western

Mining Council to present its views and

arguments on behalf of granting a writ

of certiorari as requested by Petition-

ers Doremus in this matter.

Respectfully submitted,

ROBERT A. SANREGRET, (Counsel of Record)

Law Offices of ROBERT A. SANREGRET

316 West 4th Street, Second Floor

Santa Ana, California 92701

(714) 547-8451

Attorney for Amicus Curiae

WESTERN MINING COUNCIL, INC.

December, 1990

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