Rogers v. United States, CV 80-114-H.

Citation575 F. Supp. 4
Decision Date28 June 1982
Docket NumberNo. CV 80-114-H.,CV 80-114-H.
PartiesM.E. ROGERS, Plaintiff, v. UNITED STATES of America, United States Department of the Interior, Cecil Andrus, Secretary of the Interior, Bureau of Land Management, and Frank Gregg, Director of Bureau of Land Management, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)

Ward A. Shanahan, Gough, Shanahan, Johnson & Waterman, Helena, Mont., for plaintiff.

Gerald S. Fish, Dept. of Justice, Washington, D.C., and Frank D. Meglen, Asst. U.S. Atty., Billings, Mont., for defendants.

MEMORANDUM OPINION

BATTIN, Chief Judge.

This matter is before the Court on cross-motions for summary judgment. The issue presented is whether an irrebuttable presumption that an unfiled missing claim is abandoned, violates the due process clause of the Fifth Amendment. Because the Court finds the statute in question to be unconstitutional, plaintiff's motion for summary judgment is granted.

I. FACTUAL BACKGROUND

This case concerns ten mining claims owned by plaintiff M.E. Rogers. On October 21, 1950, Herbert W. Carver located the Ross, Stable Vein and Carlton Lode Mining Claims on United States government land located in Broadwater County, Montana. On November 20, 1950, Carver filed these three claims with the Broadwater County clerk and recorder. Although the facts are unclear, it appears that plaintiff Rogers bought these three claims from one of Carver's successors in title sometime in 1967. These three claims also seem to have been the subject of much litigation, a lis pendens having been filed by Rogers in 1975 and three lawsuits having been filed in the Montana state courts. Rogers located one of the other mining claims (the St. Francis Xavier Lode Mining Claim) on October 10, 1964, in Broadwater County, and recorded it on December 17, 1964. Rogers located the last six claims on September 26, 1967, also in Broadwater County, and recorded them on October 31, 1967.

Rogers apparently made no effort to notify the United States government of these ten mining claims until September 24, 1979, when Rogers filed with the Bureau of Land Management two maps showing the location of each of the claims. On October 16, 1979, BLM notified Rogers that, according to a federal statute (43 U.S.C. § 1744 (1976)), Rogers would have to supply a copy of the official record of the notice of the location. Plaintiff received this letter on October 26, 1979, and mailed the required documents a few days later. BLM received the correct copies required for filing on November 2, 1979. However, because the filing deadline for filing all unpatented mining claims was October 21, 1979, and this date had already passed, BLM refused to recognize the claims.

Plaintiff appealed to the Interior Board of Land Appeals, which upheld the initial BLM decision of invalidity on May 7, 1980. Although BLM made its decision without prejudice to Rogers' right to relocate his claims, Rogers fears that at least four of the claims lie within the Elkhorn Wilderness Study Area and will not be available for mining. On July 3, 1980, Rogers filed this action seeking judicial review of the BLM determination. Both Rogers and BLM have filed motions for summary judgment.

This case exposes rather vividly many of the problems surrounding unpatented mining claims on government lands. The Mining Law of 1872 (30 U.S.C. § 22 et seq. (1976)) authorized mining claims by any United States citizen who was able to locate a claim on lands belonging to the United States. It was contemplated that most miners, seeking to perfect a claim, would follow the procedures for patenting their mining claim under 30 U.S.C. § 29 (1976). Until the patent process was begun, however, the owner of a mining claim was under no duty to notify the United States of his pending claim. This created obvious title problems with regard to all government land because, in order to discover the existence of unpatented mining claims, the United States was required to search all local government records of recorded mining claims.

In 1976, with the passage of the Federal Land Policy and Management Act (FLPMA), Congress attempted to solve the problem of dormant unpatented mining claims. This act created a federal repository, describing where, when, and by whom mining claims had been located. Topaz Beryllium Co. v. United States, 479 F.Supp. 309, 312 (D.Utah 1979), aff'd, 649 F.2d 775 (10th Cir.1981). The act also required owners of mining claims to file, before specific deadlines, notices of mining claims and annual statements showing continued interest in the mining claims. 43 U.S.C. § 1744 (1976).1 It is this filing statute with which plaintiff here has apparently failed to comply.

II. EXISTENCE OF A PROPERTY RIGHT

To establish that his due process rights have been infringed, plaintiff must demonstrate that the laws creating these rights give rise to a "legitimate claim of entitlement." Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 11, 98 S.Ct. 1554, 1561, 56 L.Ed.2d 30 (1978). In the case of a mining claim such as plaintiff possesses, the United States Supreme Court has held that an unpatented mining claim is a unique form of property which imparts a possessory mineral interest in land. Best v. Humboldt Mining Co., 371 U.S. 334, 335, 83 S.Ct. 379, 381-82, 9 L.Ed.2d 350 (1963). See Western Mining Council v. Watt, 643 F.2d 618, 628 (9th Cir.1981). A mining claim has been described as "property in the fullest sense of that term." Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 316-17, 50 S.Ct. 103, 104, 74 L.Ed. 445 (1930). We thus have little difficulty in concluding that plaintiff's unpatented mining claim is sufficient to invoke the property strictures of the Fifth Amendment's due process clause.

The arguments of the United States asserting that an unpatented mining claim is not a property right seem to confuse title to real property with property rights under the Fifth Amendment. The United States relies upon the proposition that unpatented mining claims are "valid against the United States" only if "there has been a discovery of mineral within the limits of the claim, if the lands are still mineral, and if other statutory requirements have been met." Best v. Humboldt Mining Co., supra, 371 U.S. at 336, 83 S.Ct. at 382; Cameron v. United States, 252 U.S. 450, 456, 40 S.Ct. 410, 411, 64 L.Ed. 659 (1920). The validity of a mining claim as against the United States goes to the question of whether the holder of the claim has superior title to that of the United States. See Best v. Humboldt Mining Co., supra, 371 U.S. at 336, 83 S.Ct. at 382. Apparently the United States would have a mining claim owner prevail in a quiet title action before he could assert a Fifth Amendment right. This is not in keeping with the recognition that an unpatented mining claim is "a unique form of property" regardless of whether it is superior to the title of the United States.

One of the problems with this argument of invalidity of plaintiff's claim is that it relies in part upon a tautologous bit of logic. The United States argues that an unpatented mining claim is invalid unless all relevant laws with regard to mining location are complied with. Cameron v. United States, supra, 252 U.S. at 460, 40 S.Ct. at 412. One of the laws with which plaintiff has failed to comply is 43 U.S.C. § 1744(a) (1976), the statute whose constitutionality plaintiff wishes to challenge. Therefore, because plaintiff has not complied with the allegedly unconstitutional statute, he cannot challenge the statute's constitutionality. Clearly, the argument of the United States would handily preclude all litigation concerning any filing statute's constitutionality, for claims invalidated by the statute would not give rise to a constitutionally protected right and claims which complied with the statute would not impart standing to sue.

Furthermore, the United States ignores the fact that, prior to October 21, 1976 (the filing deadline created by § 1744(a)), plaintiff had complied with all applicable laws and therefore must have possessed a valid (albeit unpatented) mining claim. It is our understanding that, prior to the passage of FLPMA in 1976, the holder of an unpatented mining claim possessed a property right which could not be eliminated without at least an administrative hearing. As the United States Supreme Court declared in 1920, in speaking of claims to public lands,

Of course, the Land Department has no power to strike down any 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, supra, 252 U.S. at 460, 40 S.Ct. at 412 (emphasis added). We therefore conclude that, with passage of FLPMA, the holder of an unpatented mining claim who failed to comply with FLPMA's filing requirements was stripped of a property right which had previously been recognized unequivocally by the courts.

We take particular notice of the Ninth Circuit's discussion of unpatented mining claims in Western Mineral Council v. Watt, supra, 643 F.2d at 628. The plaintiffs in Western Mineral Council, like the plaintiff in this case, were owners of unpatented mining claims located prior to the passage of FLPMA. They, like the plaintiff here, had failed to comply with the filing requirements of § 1744. Nonetheless, the Ninth Circuit had little trouble in finding that a property right held by plaintiffs had been threatened:

Because 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. We believe that the allegations in this regard indicate a sufficiently real and immediate threat of injury to give rise to a justiciable, actual controversy, and present a sufficiently
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5 cases
  • United States v. Locke
    • United States
    • United States Supreme Court
    • 1 Abril 1985
    ...to invalidation of claims based on failure to meet the initial recordation requirements of § 314(a) in timely fashion. Rogers v. United States, 575 F.Supp. 4 (Mont.1982). 9. When the nonconstitutional questions have not been passed on by the lower court, we may vacate the decision below and......
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    ...the spirit and tenor of applicable statutes, Congressional expression, decisional law and precedents. 19C But cf., Rogers v. United States, 575 F.Supp. 4 (D.Mont.1982) refusing to apply a substantial compliance standard to the plain language of 43 U.S.C. ž 20 The Federal Land Policy and Man......
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    • United States Supreme Court
    • 1 Abril 1985
    ...invalidation of claims based on failure to meet the initial recordation requirements of § 314(a) in timelier fashion. Rogers v. United States, 575 F.Supp. 4 (Mont.1982). [Footnote When the nonconstitutional questions have not been passed on by the lower court, we may vacate the decision bel......
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