573 F.Supp. 472 (D.Nev. 1983), Civ. R-82-297, Locke v. United States

Docket Nº:Civ. R-82-297
Citation:573 F.Supp. 472
Party Name:Locke v. United States
Case Date:October 20, 1983
Court:United States District Courts, 9th Circuit, District of Nevada

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573 F.Supp. 472 (D.Nev. 1983)

Madison D. LOCKE, Rosalie E. Locke, Sam Buccambuso, and Tony Buccambuso, Plaintiffs,


UNITED STATES of America, United States Department of the Interior, James Watt, Secretary of the Interior, Bureau of Land Management, and Robert F. Burford, Director of the Bureau of Land Management, Defendants.

Civ. No. R-82-297 BRT.

United States District Court, D. Nevada.

Oct. 20, 1983

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Bosen, Swafford & Hoffman, Harold A. Swafford, Reno, Nev., for plaintiffs.

Lamond R. Mills, U.S. Atty., Shirley Smith, Asst. U.S. Atty., Reno, Nev., for defendants.


BRUCE R. THOMPSON, District Judge.

The primary issue raised by the parties' cross-motions for summary judgment is the constitutionality of 43 U.S.C. § 1744(a) and (c). This statute creates an irrebuttable presumption that mining claims are abandoned if the miner fails to timely file an annual proof of labor (assessment notice). After careful consideration,

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we conclude that this statute violates the due process clause of the Fifth Amendment. In addition, we conclude that the plaintiffs here have substantially complied with the statute regardless of its constitutionality.

Plaintiffs, Madison and Rosalie Locke, et al. (Lockes), are owners of ten unpatented mining claims from which they produce gravel and building materials. These claims are located in the state of Nevada on public land belonging to the United States Government. The Lockes have successfully earned their livelihood by mining these claims since 1960. During that period these claims have produced approximately $4,000,000 in materials, with over $1,000,000 of that being produced during the 1979-1980 assessment year.

In 1976, the United States enacted the Federal Land Policy and Management Act, Pub.L. No. 94-579, 90 Stat. 2743 (codified at 43 U.S.C. §§ 1701-82) (FLPMA) which required the Lockes to register their unpatented claims with the Bureau of Land Management (BLM) by October 21, 1979. They complied fully with this initial filing requirement on October 19, 1979. Each calendar year thereafter, FLPMA further requires a filing of the assessment notice (showing that $100 worth of labor has been performed on the claim during the assessment year) "prior to" December 31. 43 U.S.C. § 1744(a). It is this provision which creates the controversy here.

In an effort to comply fully with this provision, the Lockes sent their daughter, who was working in their business office, to the Ely office of the BLM. There she inquired as to the procedure for filing the assessment notice. She was told that the documents should be filed at the Reno BLM office "on or before December 31, 1980." Affidavit of Laura C. Locke, August 28, 1981, para. 3. (The identity of the federal employee who allegedly gave this advice is unknown. Therefore, we place no reliance on the advice. The uncontradicted evidence of the inquiry is, nevertheless, evidence of lack of intent to abandon). The Lockes then chose to hand-deliver the documents to assure their delivery and, on December 31, 1980, the assessment notices were filed at the Reno BLM office.

On April 4, 1981, the Lockes received notice that their mining claims were declared "abandoned and void" for failure to comply with 43 CFR § 3833.2-1 (the BLM's regulation promulgated under 43 U.S.C. § 1744 which requires filing the assessment notices "on or before December 30" of each calendar year. 43 CFR § 3833.2-1(a) (1982)). On May 1, 1981, they appealed the declaration of abandonment to the Interior Board of Land Appeals (IBLA). That body ruled on June 25, 1982 that the Lockes had missed the December 30, 1980 deadline and thus their claims were forfeited. The IBLA refused to address the Lockes' constitutional arguments. They then instituted this action to challenge the constitutionality of 43 U.S.C. § 1744 as depriving them of procedural due process under the Fifth Amendment.

In order to establish a deprivation of their due process rights, the Lockes must first show that the laws creating these rights give rise to a "legitimate claim of entitlement." Memphis Light, Gas and Water District v. Craft, 436 U.S. 1, 12, 98 S.Ct. 1554, 1561, 56 L.Ed.2d 30 (1978). The Supreme Court has held that unpatented mining claims are a possessory mineral interest in land, as well as "property in the fullest sense of that term." Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 316, 50 S.Ct. 103, 104, 74 L.Ed. 445 (1930); see also, Best v. Humboldt Mining Co., 371 U.S. 334, 335, 83 S.Ct. 379, 381, 9 L.Ed.2d 350 (1963). Similarly, the Ninth Circuit Court of Appeals recently concluded that the holder of an unpatented mining claim has a property right: "[b]ecause an unpatented mining claim is a unique form of property which created in the owners a possessory interest in the land, the loss of such an interest would constitute a substantial injury." Western Mining Council v. Watt, 643 F.2d 618, 628 (9th Cir. 1981) (citations omitted). Thus, there can be little doubt that the Lockes' unpatented claims rise to the level of a property interest

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sufficient to warrant due process protection.

The Lockes contend that the language of 43 U.S.C. § 1744, establishing conclusively that they have abandoned their claims, is tantamount to declaring a forfeiture of their claims. They note that, although the BLM has recommended that they relocate their claims, it is uncontroverted that they are precluded from doing so by 30 U.S.C. § 611, the so-called "Common Varieties Act." Thus, they are prevented from mining their old claims and at the same time from relocating the claims.

The government, however, contends that the term "abandonment" in the statute is not the same as "forfeiture," and thus an extinguishment of the Lockes' rights does not occur merely by operation of the presumption. This reasoning is not persuasive. The American Law of Mining distinguishes between abandonment and forfeiture in Section 8.2 of Volume 2 by stating:

Although there is a clear distinction between abandonment and forfeiture, the terms are frequently used as though they were interchangeable. The resulting confusion is compounded by statutes which provide that certain acts, unaccompanied by the requisite intent, shall constitute an abandonment.... To show abandonment, the intent of the claimant must be determined; to show forfeiture, only noncompliance with the requirements of law must be shown.

2 Rocky Mountain Mineral Law Foundation, The American Law of Mining 195-96 (1981) (footnotes omitted).

The statute creates a forfeiture of plaintiffs' rights in the mining claims since they at no time evidenced an intent to abandon those claims. This forfeiture extinguishes their previously valid interests and results in a taking of their property sufficient to trigger the due process protections of the Fifth Amendment.

After establishing the existence and loss of their rights in the subject claims, we turn to what quality of procedural process is "due" the Lockes before their property rights may be extinguished. Some guidance in this regard can be drawn from the law prior to the passage of FLPMA. In 1920, the Supreme Court ruled that the holder of an unpatented mining claim possesses a property right worthy of strong due process protections:

[o]f course, the land department [BLM] has no power to strike down a claim arbitrarily, but so long as the legal title remains in the government it does have power, after proper notice and upon adequate hearing, to determine whether the claim is valid and, if it be found invalid, to declare it null and void.

Cameron v. United States, 252 U.S. 450, 460, 40 S.Ct. 410, 412, 64 L.Ed. 659 (1920) (emphasis added). Thus, pre-FLPMA miners were entitled at the least to notice and a hearing prior to forfeiture of their claims.

In determining which procedural safeguards must be afforded post-FLPMA miners, this Court would normally consider the extent to which they might suffer grievous loss, the nature of the governmental function involved, and the nature of the private interest affected. Morrissey v. Brewer, 408 U.S. 471, 481-82, 92 S.Ct. 2593, 2600-2601, 33 L.Ed.2d 484 (1972). But, where the statute in question creates an irrebuttable presumption, we must instead look to the nature of that presumption before balancing these factors. Vlandis v. Kline, 412 U.S. 441, 452, 93 S.Ct. 2230, 2236, 37 L.Ed.2d 63 (1973). The Supreme Court in Vlandis v. Kline established a two-prong test for the presumption analysis. Id. If " 'the presumption is not necessarily or universally true in fact' and the government has available 'reasonable alternative means of making the crucial determination,' " then due process demands a hearing to rebut the presumption. Rogers v. United States, 575 F.Supp. 4 (D.Mont. 1982) (quoting Vlandis v. Kline, supra, 412 U.S. at 452, 93 S.Ct. at 2236); see also, Stanley v. Illinois, 405 U.S. 645, 658, 92 S.Ct. 1208, 1216, 31 L.Ed.2d 551 (1972) (due process hearing required to rebut conclusive presumption that unmarried

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father was unfit as a parent since this presumption not universally true).

The present case perfectly illustrates a presumption that is not necessarily or universally true in fact. The Lockes mined over $1,000,000 worth of materials from their "abandoned" mines during the 1979-80 assessment year. They filed proofs of annual labor with the White Pine County Recorder on August 26, 1980. They filed the proper documents at the Reno office of the BLM on December 31, 1980, one day after the December 30, 1980 deadline. It would be absurd in light of these facts to conclude that the Lockes intended to abandon their claims. Thus, they have met the first prong of the Vlandis test.

The second prong of the Vlandis test concerns the government's ability to make a reasonable determination of whether the fact(s) presumed actually exist. At the outset we...

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