# Amicus Curiae Brief — Doremus v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1046

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2832%3A3. Public record. Not legal advice.