U.S. v. Allen

• Citation: 578 F.2d 236
• Decision Date: 14 June 1978
• Docket Number: No. 77-3113,77-3113
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lincoln Albert ALLEN, aka Bud Allen, Helen Carter Allen, and Lincoln Albert Allen, Jr., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 236

578 F.2d 236

UNITED STATES of America, Plaintiff-Appellee, v. Lincoln Albert ALLEN, aka Bud Allen, Helen Carter Allen, and Lincoln Albert Allen, Jr., Defendants-Appellants.

No. 77-3113.

United States Court of Appeals Ninth Circuit.

June 14, 1978.

Jane Skanderup, Yreka, Cal. (Submitted on the Briefs), for defendants-appellants.

Sanford Sagalkin, Acting Asst. Atty. Gen., Sacramento, Cal. (Submitted on Briefs), for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before DUNIWAY and WRIGHT, Circuit Judges, and KUNZIG, ^* Judge.

PER CURIAM:

Defendants-appellants owned two mining claims which were the subject of a contest hearing initiated by the Government. The hearing, before an administrative law judge, resulted in a declaration that the claims were null and void. The United States then brought the present ejectment action in Federal District Court. Appellants counterclaimed based on inverse condemnation. The District Court for the Eastern District of California (Wilkins, J.) granted the Government motion for summary judgment, finding appellants' continued occupation to constitute a trespass and ordering appellants to vacate the property. Judge Wilkins also dismissed the counterclaim. We affirm.

In examining a motion for summary judgment, the district court must determine whether any material factual issues exist which can only be resolved through a trial. Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543 (9th Cir. 1975). The District Court specifically held that no such issues were involved. Indeed, there can be no question of fact, as appellants concede that the claims, located on public lands, are null and void. In addition, the record indicates that the Allens never even conducted an actual mining operation on these purported claims.

In order successfully to oppose a motion for summary judgment, a party may not rely solely on conclusory allegations in the pleadings, Retana v. Apartment, Motel, Hotel & Elevator Operators Union, Local No. 14, 453 F.2d 1018, 1022 n. 7 (9th Cir. 1972), but must, instead, offer some evidence at least outlining a factual dispute. Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir. 1974). In similar circumstances, this court has previously held summary judgment to be appropriate in a comparable action enjoining a mining claimant who persisted upon remaining at a mining claim which had been declared invalid. Adams v. United States, 318 F.2d 861 (9th Cir. 1963).

In the case at hand, the Allens have admitted that the claims have been declared null and void and that the claims were on public land. Since they did not file any supporting affidavits in opposition to the Government's motion which would raise any other, new issues of material fact, this case is clearly one suitable for summary judgment.

Having thus determined the suitability of summary judgment in the present case, we must now determine whether the Government was entitled to prevail as a matter of law. The gist of this case is whether a person, under the guise of repeatedly locating invalid mining claims may use public lands primarily for residential purposes. Appellants' argument ignores this obvious distinction between the right to explore and the right permanently to occupy and reside on the site of a claim.

Congress has broad power to regulate land within the public domain, Kleppe v. New...