Backes v. Bernhardt

Citation523 F.Supp.3d 1233
Decision Date05 March 2021
Docket NumberCase No. 1:19 cv 00482-CL
Parties George E. BACKES, and Rick Barclay, Plaintiffs, v. David BERNHARDT, Acting Secretary of Interior, et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)

523 F.Supp.3d 1233

George E. BACKES, and Rick Barclay, Plaintiffs,
David BERNHARDT, Acting Secretary of Interior, et al., Defendants.

Case No. 1:19 cv 00482-CL

United States District Court, D. Oregon, Medford Division.

Signed March 5, 2021

523 F.Supp.3d 1235

James R. Dole, Watkinson Laird Rubenstein PC, Eugene, OR, for Plaintiffs.

Sean E. Martin, U.S. Attorney's Office District of Oregon, Portland, OR, for Defendants.


Ann Aiken, United States District Judge

12 Magistrate Judge Mark Clarke filed Findings and Recommendation ("F&R") (doc. 44) on February 18, 2021. The matter is now before me. See 28 U.S.C. § 636(b) ; Fed. R. Civ. P. 72. No objections have been timely filed. Although this relieves me of my obligation to perform a de novo review, I retain the obligation to "make an informed, final determination." Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983), overruled on other grounds, United States v. Reyna-Tapia, 328 F.3d 1114, 1121–22 (9th Cir. 2003) (en banc). The Magistrates Act does not specify a standard of review in cases where no objections are filed. Ray v. Astrue, 2012 WL 1598239, *1 (D. Or. May 7, 2012). Following the recommendation of the Rules Advisory Committee, I review the F&R for "clear error on the face of the record[.]" Fed. R. Civ. P. 72 advisory committee's note (1983) (citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir. 1974) ); see also United States v. Vonn, 535 U.S. 55, 64 n.6, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (stating that, "[i]n the absence of a clear legislative mandate, the Advisory Committee Notes provide a reliable source of insight into the meaning of" a federal rule). Having reviewed the file of this case, I find no clear error.

THEREFORE, IT IS HEREBY ORDERED that I ADOPT Judge Mark Clarke's F&R (doc. 44).

CLARKE, Magistrate Judge.


Plaintiffs George Backes and Rick Barclay bring this cause of action challenging the final decision of the Internal Board of Land Appeals, which found Plaintiffs in violation of the Bureau of Land Management regulations concerning their mining operation and occupancy of public lands. The case comes before the Court on cross motions for summary judgment. On February 3, 2021, the Court held a telephonic oral argument hearing on the motion. For the reasons below, the Plaintiffs’ motion (#34) should be DENIED, and the defendants’ motion (#37) should be GRANTED. This case should be dismissed, and judgment entered for the defendants.


The first claim in this action seeks review pursuant to 5 U.S.C. §§ 701 et seq. (the federal Administrative Procedures Act or "APA") of a final decision of the United States Department of Interior's Bureau of Land Management through its Interior Board of Land Appeals (IBLA). Plaintiffs’ second claim challenges the underlying validity

523 F.Supp.3d 1236

of the final decision because the Noncompliance Notices on which the decision was based are alleged to have been executed by a person who did not have the proper delegated authority.


This case involves public lands managed by the Bureau of Land Management (BLM) in Josephine County, Oregon near the Rogue River, which are subject to Plaintiffs’ unpatented mining claims. ECF 1 ¶ 10-11; DEFS_10.1 Five of Plaintiffs’ six mining claims were located before the enactment of the Surface Resources and Multiple Use Act of 1955 ("SRA"). DEFS_5. In January 2015, the BLM undertook a site inspection of Plaintiffs’ operations. DEFS_11-12; DEFS_561-562; DEFS_554-560 (photos from site inspection). During the site inspection, the BLM observed the presence of "mechanized earth moving equipment" used to "install a water pipe system, improve roads, clear adit entrances, and level areas for structures and work areas." DEFS_531. The BLM found that this exceeded "casual use" under 43 C.F.R. Subpart 3809 and found violations of specific prohibited acts under 43 C.F.R. § 3809.605. DEFS_532.

The BLM also observed two camp trailers, an on-site watchman, two private gates, multiple no-trespassing and warning signs, a residential cabin, a milling facility, a recently poured concrete slab, several mills and crushers, storage of large equipment, and mining supplies on the public lands. DEFS_528. The BLM found these uses constituted "occupancy" under 43 C.F.R. Subpart 3715 and found violations of specific prohibited acts under 43 C.F.R. § 3715.6. DEFS_529.

Accordingly, in March 2015 the BLM issued two Noncompliance Notices, each listing the observed violations of 43 C.F.R. Subparts 3809 and 3715. DEFS_528-533. The Notices are signed by a purported individual whose signature appears to be that of someone named "Jim Bell." At the administrative level, Plaintiffs did not dispute the contents of the Notices, but they did dispute the BLM's authority to regulate Plaintiffs’ mining claims.

On appeal to the IBLA, Plaintiffs argued that holders of unpatented mining claims located before the enactment of the Surface Resources Act of 1995 have the exclusive right to use and manage the surface of the claims, subject only to the limitation that use must be "reasonably incident to mining." The IBLA disagreed with the Plaintiffs. Even after assuming all of the disputed facts in favor of the Plaintiffs, the IBLA found that 43 C.F.R. 3715 and 3809 are consistent with the BLM's statutory authority to regulate all mining claims, and it held that the BLM properly applied the regulations to Plaintiffs’ claims.

During the years in which the administrative proceedings were pending before the IBLA, Plaintiffs submitted one or more Freedom of Information Act (FOIA) requests attempting to determine the identity of the person who had executed the BLM Notices on behalf of the agency "acting for" Field Manager Allen Bollschweiger. The BLM's responses to the FOIA requests redacted the pertinent information, and the agency has not disclosed the identity of the person who signed the notices. Plaintiffs claim that no one with the name "Jim Bell" or anything similar is known to be associated with the local BLM offices from which the Notices originated, nor has the BLM established that the individual

523 F.Supp.3d 1237

who appears to have executed the Notices had authority to do so. The issue of the signature provided on the Noncompliance Notices was not raised to the IBLA, nor was it addressed in those administrative proceedings.


a. The Mining Law

The Mining Law of 1872 ("Mining Law") is considered the "cornerstone of federal legislation dealing with mineral lands." United States v. Coleman , 390 U.S. 599, 600 n. 1, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968). The Mining Law, as amended, is codified at 30 U.S.C. §§ 22 – 54. Under the Mining Law, a private citizen may enter public lands to prospect and mine for mineral deposits. 30 U.S.C. § 22. The grant of rights to use public lands pursuant to the Mining Law has always been restricted solely to explore for and mine valuable mineral deposits. See Multnomah Mining, Milling & Dev. Co. v. United States , 211 F. 100 (9th Cir. 1914).

The Mining Law also authorizes citizens to stake, or "locate," a valid mining claim upon "discovery" of a valuable mineral deposit and compliance with all other applicable statutory and regulatory requirements. Chrisman v. Miller , 197 U.S. 313, 320-21, 25 S.Ct. 468, 49 L.Ed. 770 (1905). Legal title to the public lands encumbered by mining claims remains with the United States, unless and until the mining claimant obtains a "patent" to the lands by complying with the requirements set forth in the Mining Law. 30 U.S.C. § 29 ; see Cal. Coastal Comm'n v. Granite Rock Co. , 480 U.S. 572, 575, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) ; Teller v. United States , 113 F. 273, 281 (8th Cir. 1901) ; Freese v. United States , 639 F.2d 754, 756 (Ct. Cl. 1981) ; Copar Pumice Co. v. Bosworth , 502 F. Supp. 2d 1200, 1202 (D.N.M. 2007) (explaining that "title to the land where the mining claim is located remains with the Government").

The text of the Mining Law makes clear that use and occupancy of public lands subject to mining claims, such as the lands at issue, is subject to regulation:

Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States ... shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States ... under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.

30 U.S.C. § 22 ; see also id. § 26 (providing mining claimants with the right of possession "so long as they comply with the laws of the United...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT