Clouser v. Espy

Decision Date07 December 1994
Docket NumberNo. 93-35051,93-35051
Citation42 F.3d 1522
Parties25 Envtl. L. Rep. 20,360 Leroy CLOUSER and Sharon Clouser (Owners of the Robert E. Mining Claims), Carl E. Setera, Judith M. Setera, Anthony S. Setera and Lois A. Setera (Owners of the Thunderbolt Mining Claims), Gary Hoefler, Don Wurster, Cameron Anderson and Robin Anderson (Owners of the Wilson Mining Claim), Plaintiffs-Appellants, v. Mike ESPY, Secretary of Agriculture, United States of America, Dale Robertson, Chief Forester, Forest Service, John Butruille, Regional Forester, Pacific Northwest Region, Jeff Blackwood, Forest Supervisor, Umatilla National Forest, Craig Smith Dixon, District Ranger, North Fork John Day Ranger District, Mike Lunn, Forest Supervisor, Siskiyou National Forest, Dennis Holthus, District Ranger, Illinois Valley Ranger District, Bruce Babbitt, Secretary of the Interior, Cy Jamison, Director of the Bureau of Land Management, D. Dean Bibles, State Director, Oregon State Office, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Philip F. Schuster, II and Roger F. Dierking, Portland, OR, for plaintiffs-appellants.

Peter A. Appel, Robert L. Klarquist and Alexandra A.E. Shapiro, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before: TANG and WIGGINS, Circuit Judges, and HENDERSON, * District Judge.

THELTON E. HENDERSON, District Judge:

This case is a lawsuit by holders of certain mining claims located on federal land within National Forests. The claim holders challenge rulings by the U.S. Forest Service that, among other things, refused under certain circumstances to permit them to use motor vehicles to access their claims, requiring them instead to use pack animals. On the parties' cross motions for summary judgment, the district court granted summary judgment for defendants and plaintiffs appealed. For the reasons set forth below, we affirm.

I. BACKGROUND
A. OVERVIEW

This lawsuit is brought by three different sets of plaintiffs, all of whom have asserted rights to mine in areas located wholly within federal national forest lands. Two of the claims are located in regions designated "wilderness areas" pursuant to the Wilderness Act of 1964, 16 U.S.C. Secs. 1131-1136, and the third is located on national forest land that is part of the National Wild and Scenic Rivers System, 16 U.S.C. Sec. 1271. In each case, the national forest land in which the mining claims are located was at one time open to the public for exploration, prospecting, and the extraction of minerals; 1 however the land was subsequently withdrawn from mineral entry under the Wilderness Act or the Wild and Scenic Rivers Act, so that only persons establishing that they discovered a valuable mineral deposit prior to the withdrawal possess a valid right to mine claims there (a "valid claim"). All three sets of claims at issue are unpatented. 2

The validity of such claims is determined by the U.S. Department of the Interior ("Interior") through its Bureau of Land Management ("BLM"), which administers the federal laws governing the right to stake mining claims on federal land. However, the claims are located on national forest lands which otherwise are regulated by the U.S. Forest Service ("Forest Service" or "Service"), a part of the U.S. Department of Agriculture ("Agriculture"). This case involves a challenge to certain decisions made by the Forest Service with respect to plans proposed by the plaintiffs for mining the three sets of claims at issue.

The challenged Forest Service decisions are: (1) Forest Service rulings refusing to permit motorized access to, or to approve the conduct of other mining activities on, certain claims, pending determination of claim validity by the Department of the Interior (the "Wilson" and "Robert E." claims); (2) Forest Service rulings that, even for valid claims, access to claims located within federal national forest lands should be limited to non-motorized means where the Forest Service considers such means adequate to carry out the proposed mining operations (the "Robert E." and "Thunderbolt" claims); and (3) a Forest Service ruling requesting that plaintiffs file a plan of proposed mining operations, as required by Forest Service regulations (the "Wilson" claim).

B. DESCRIPTION OF THE THREE GROUPS OF MINING CLAIMS AT ISSUE AND THE ADMINISTRATIVE PROCEEDINGS PRECEDING THIS LITIGATION
1. THE ROBERT E. MINING CLAIMS

The Robert E. claims, owned by plaintiffs Leroy and Sharon Clouser, are part of the Siskiyou National Forest and are located in Curry County, Oregon. The claims are located on land that was included in the Siskiyou Forest Reserve on October 5, 1906, and withdrawn from mineral entry when it became part of the Kalmiopsis Wilderness on September 3, 1964. ER at 150. 3

In 1985, the Forest Service conducted a mineral examination of the Robert E. claims and initiated contest proceedings in the Department of the Interior to have the claims declared void, on the ground that no valuable mineral deposits had been discovered there before 1964 when the land was withdrawn from mineral entry. 4 An Interior Department Administrative Law Judge ("ALJ") held the claims null and void, and plaintiffs have appealed that decision to the Interior Department's Board of Land Appeals. ER at 220 n. 4.

In June 1990, plaintiffs filed a plan of operations with the Forest Service, proposing certain mining activities on the Robert E. claims. The plan proposed accessing the claims by using motor vehicles to drive to the claims across surrounding national forest wilderness lands. The Forest Supervisor approved the plan subject to certain conditions, one of which was that plaintiffs would have to use non-motorized means such as pack animals to access the claims. SER at 55-57. Plaintiffs appealed this decision to the Deputy Regional Forester who affirmed it in October 1990.

2. THE THUNDERBOLT MINING CLAIMS

The Thunderbolt claims, owned by plaintiffs Carl, Judith, and Anthony Setera, are located in the Umatilla National Forest in Oregon. The lands on which the claims are located were included in the Blue Mountain Forest Reserve on March 15, 1906; these lands were withdrawn from mineral entry and became part of the North Fork John Day Wilderness Area on June 26, 1984. There are six claims; five were located in 1980 and the sixth in 1982. For purposes of this case only, the government has agreed to assume that Thunderbolt claim # 2, the only claim involved in this case, is valid. SER at 26.

In August 1988, the plaintiffs filed a notice of intent and plan of operations proposing the use of a "suction dredge" and other equipment to test Thunderbolt claim # 2. They proposed motorized access over two Forest Service trails covering a distance of approximately four miles in the wilderness. This proposed route had been gated and blocked from traffic in 1984 after the land was included in the North Fork John Day Wilderness Area. SER at 49. In November 1988, the Forest Supervisor issued a decision restricting plaintiffs to using pack animals or other non-motorized means of access, on the ground that motorized access was not essential due to the limited nature of the proposed operation. ER at 62-63; ER at 152.

In May 1989, plaintiffs proposed another plan of operations, which they revised in July 1989. The revised plan proposed use of a five-inch suction dredge and motorized access over the same two Forest Service roads. ER at 69-71. In August 1989, the Forest Supervisor determined, based on an environmental assessment that had been conducted in 1988, that the plan could not be approved as submitted because motorized access was not necessary given the low level of proposed operations and because of the Forest Service's statutory mandate to preserve the wilderness characteristics of the lands in question. ER at 73-74. The Forest Supervisor directed the plaintiffs to amend the operating plan and to provide for access by horses or other non-motorized means. ER at 73-74.

Plaintiffs appealed, and in February 1990 the Deputy Regional Forester affirmed the Forest Supervisor's decision limiting access to non-motorized means. The plaintiffs filed a petition for discretionary review of this decision with the Chief of the Forest Service, but it was denied. ER at 102.

3. THE WILSON PLACER MINING CLAIM

The Wilson Claim, owned by plaintiffs Gary Hoefler, Don Wurster, and Cameron and Robin Anderson, is located along the Illinois River in Josephine County, Oregon. It is part of the Siskiyou National Forest and the Illinois River component of the Wild and Scenic Rivers System. ER at 148. The lands on which it is located were withdrawn from mineral entry on January 7, 1926, pursuant to Sec. 24 of the Federal Power Act of 1920, codified as amended at 16 U.S.C. Sec. 818. The land was reopened to mineral entry in 1955, but withdrawn again pursuant to the Wild and Scenic Rivers Act of 1968, 16 U.S.C. Sec. 1271 et seq. The Forest Service's records indicate that the claim was located on July 14, 1934, at a time when the lands were not open to mineral entry. SER at 2-7, 10, 12.

In September 1988, plaintiffs submitted a plan of operations to the District Ranger of the Siskiyou National Forest proposing mining activities on the claim. ER at 38. The District Ranger acknowledged receiving the plan but explained that he could not approve it until the claim's validity could be established. ER at 39. In January 1989, plaintiffs submitted a revised plan of operations. The District Ranger again refused to approve the plan because of doubts about the claim's validity. He explained that he had asked the BLM to determine the status of the lands encompassed by the Wilson claim and would await the BLM determination on the validity of the claim before making a final decision on the proposed plan of operations. ER at 40-41.

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