United States v. Backlund

689 F.3d 986

12 Cal. Daily Op. Serv. 8610

2012 Daily Journal D.A.R. 10,526

UNITED STATES of America, Plaintiff–Appellee,

v.Michael BACKLUND, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.David D. Everist, Defendant–Appellant.

Nos. 10–30264, 10–30289.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 15, 2011.

Filed April 26, 2012.

Amended July 31, 2012.

James L. Buchal, Murphy & Buchal LLP, Portland, OR, for appellant, Michael Backlund.

Steven J. Sherlag, Portland, OR, for appellant, David Everist.

Dwight C. Holton, United States Attorney; Neil J. Evans (argued), Assistant U.S. Attorney, Portland, OR; Ignacia S. Moreno, Assistant Attorney General; Allen M. Brabender, Washington, DC, for the appellee.

Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. Nos. 3:09–cr–00477–MO–1, 3:09–cr–00479–MO–1.

Before: RAYMOND C. FISHER, RICHARD A. PAEZ and RICHARD R. CLIFTON, Circuit Judges.

ORDER

The opinion filed April 26, 2012 and appearing at 677 F.3d 930 (9th Cir.2012), is AMENDED as follows:

1. At page 4441 of the slip opinion (677 F.3d at 944), the following sentence is deleted:

The government, however, can mitigate this potential for delay by promptly initiating enforcement actions and defending the agency decision in those proceedings.

and replaced with:

The government, however, can mitigate this potential for delay by promptly initiating judicial proceedings and defending the agency decision in those proceedings.

2. At page 4441 of the slip opinion (677 F.3d at 944), the following footnote is inserted as footnote 15 following the sentence that reads, “Accordingly, we conclude that the district court erred by barring Backlund from presenting his APA challenge as a defense to the alleged violation of 36 C.F.R. § 261.10(b).”:

To be clear, we do not hold that proving the correctness or even the existence of the agency action was an element of the government's criminal case against Backlund. Backlund does not argue that it was. The lawfulness of the agency action was, however, relevant to Backlund's affirmative defense that his residency was authorized.

3. At page 4441 of the slip opinion (677 F.3d at 944), the following footnote is inserted as footnote 16 following the sentence that reads, “The government did not argue that the district court's error was harmless.”:

In a petition for panel rehearing, the government argues for the first time that any error was harmless because even if Backlund had succeeded in convincing the district court that the Forest Service decision was arbitrary and capricious, the district court's decision would not legitimize Backlund's residency, which would remain unauthorized—and therefore unlawful—until the Forest Service approved Backlund's proposed plan of operations. The government's argument largely misses the point. Backlund's theory is that withholding authorization for year round residency on the Climax claims amounts to a “material interfer[ence] with ... mining[,]” 30 U.S.C. § 612(b), because the prohibition makes it financially impossible for him to mine his claims. Backlund argued that the Forest Service's decision “so unreasonably circumscribed” his mining operation “as to amount to a prohibition,” and therefore violated the mining laws. United States v. Weiss, 642 F.2d 296, 299 (9th Cir.1981). We express no opinion on the merits of Backlund's claim and leave it to the district court to evaluate in the first instance.

With these amendments, the petition for panel rehearing, filed June 11, 2012 in Case No. 10–30264, is DENIED.

An amended opinion is filed concurrently with this order. No further petitions for rehearing will be accepted.

OPINION

FISHER, Circuit Judge:

Federal law permits mining operations and uses reasonably incident thereto on National Forest System lands. Individuals mining in the national forests must comply with regulations promulgated by the United States Department of Agriculture. Under those rules, mining operations that are likely to cause significant surface disturbance require a plan of operations approved by the United States Forest Service. In addition, long-term residency on a claim site requires Forest Service authorization, either in the form of an approved plan of operations (for residency incident to mining), or a special use authorization.

The defendants in these two cases, Michael Backlund and David Everist, contend that they were engaged in bona fide mining activities on National Forest System lands, which justified full-time residency on their respective claim sites.¹ In separate administrative proceedings, however, the Forest Service determined that Backlund's and Everist's residences were not reasonably incident to qualifying mining operations, and therefore were not authorized by the mining laws. Nor did either of them possess a special use authorization. The Forest Service informed Backlund and Everist of its determinations and instructed them to cease residing on National Forest System lands. When they failed to depart, the government prosecuted them under 36 C.F.R. § 261.10(b), which prohibits “[c]onstruction, reconstructing, improving, maintaining, occupying or using a residence on National Forest System lands unless authorized by special-use authorization or approved operating plan when such authorization is required.” They appeal their respective convictions on three grounds: (1) that the Forest Service exceeded its authority by regulating residency on mining claims; (2) that 36 C.F.R. § 261.10(b) is unconstitutionally vague; and (3) that the district court denied them due process by precluding them from challenging the Forest Service's administrative determinations that their residences were not reasonably incident to mining.

We hold that the United States Forest Service may regulate residential occupancy of bona fide mining claims within the national forests, and that § 261.10(b) is consistent with the mining laws and not unconstitutionally vague. We further hold that in a criminal proceeding predicated on the Forest Service's administrative determination, a defendant may obtain judicial review of the agency action under the Administrative Procedure Act (APA), so long as the defendant complied with the procedural requirements for direct review and the APA's statute of limitations has not expired. Thus, Everist was not entitled to judicial review of the Forest Service's determination that his residency was not reasonably incident to mining, because he did not exhaust his administrative remedies as required by the APA. Backlund, on the other hand, did administratively exhaust his claim that the Forest Service's denial of his proposed plan of operations was not in accordance with law. He was, therefore, entitled to judicial review of the agency decision in the context of his criminal prosecution. Accordingly, we affirm Everist's conviction, and reverse Backlund's conviction.

Statutory and Regulatory Background

This case involves the interplay between federal statutes relating to mining on public lands and management of the national forests. Under the Mining Law of 1872, an individual who discovers a valuable mineral deposit on federal land may locate a mining claim.² The statute provides that so long as the claimant complies with federal, state and local law, he shall have “exclusive right of possession and enjoyment of all the surface included within the lines of [his] locations.” 30 U.S.C. § 26. This right is subject to certain limitations.

First, under the Multiple Use Act of 1955 “[a]ny [unpatented] mining claim hereafter located ... shall not be used ... for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto.” 30 U.S.C. § 612(a). “An ‘unpatented’ claim is a possessory interest in a particular area solely for the purpose of mining; it may be contested by the government or a private party.” Clouser v. Espy, 42 F.3d 1522, 1525 n. 2 (9th Cir.1994).³ The act also “reserve[s] to the United States the right to manage and dispose of surface resources on unpatented mining claims,” United States v. Doremus, 888 F.2d 630, 632 (9th Cir.1989), with the caveat that the government's use shall not “endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto,” 30 U.S.C. § 612(b). Thus, under the mining laws, use of an unpatented mining claim on public land is limited to activities that are reasonably incident to prospecting, mining and processing operations, and subject to the right of the United States to manage surface resources. See United States v. Curtis–Nev. Mines, Inc., 611 F.2d 1277, 1281, 1283 (9th Cir.1980).

Second, under the Organic Administration Act of 1897, mining operations on National Forest System lands are subject to rules and regulations promulgated by the Secretary of Agriculture for the protection and preservation of the national forests. See16 U.S.C. § 551.⁴ The act recognizes “prospecting, locating, and developing the mineral resources” of the national forests as “proper and lawful” uses of National Forest System lands, but individuals engaged in those activities, “must comply with the rules and regulations covering [the] national forests.” 16 U.S.C. § 478. See United States v. Weiss, 642 F.2d 296, 298 (9th Cir.1981). Under these rules, depending on the type and scope of the activity at issue, different requirements apply.

The rules set forth at 36 C.F.R. part 228, subpart A, cover mining operations and uses reasonably incident thereto on National Forest System lands. Under these rules, mining operations that will likely cause, or are causing, significant surface disturbance must be covered by an approved operating plan issued by the Forest Service.⁵See36 C.F.R. § 228.4(a)(4).⁶ Mining operations that are not likely to cause significant surface disturbance do not require an approved...