U.S. v. Campbell, 93-10462

• Decision Date: 07 October 1994
• Docket Number: No. 93-10462,93-10462
• Citation: 42 F.3d 1199
• Parties: 25 Envtl. L. Rep. 20,852 UNITED STATES of America, Plaintiff-Appellee, v. Maynard Charles CAMPBELL, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1199

42 F.3d 1199

25 Envtl. L. Rep. 20,852

UNITED STATES of America, Plaintiff-Appellee, v. Maynard Charles CAMPBELL, Jr., Defendant-Appellant.

No. 93-10462.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 7, 1994 ^*.

Decided Dec. 5, 1994.

Charles M. Bonneau, Sacramento, CA, Maynard C. Campbell, Jr., in pro. per., Leavenworth, KS, for defendant-appellant.

Rayna S. Becker, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee.

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

Before: GOODWIN, O'SCANNLAIN and KLEINFELD, Circuit Judges.

GOODWIN, Circuit Judge:

Maynard C. Campbell appeals his felony convictions for violating 18 U.S.C. Secs. 641 (theft of government property) and 1361 (depredation against government property). Campbell harvested and sold federal timber taken from Forest Service land, and constructed berms on Forest Service roads, without authorization. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm.

I. BACKGROUND

This appeal concerns events that occurred on an unpatented mining claim known as the Red Poffrei Extension ("the Extension"), located within the Klamath National Forest. In 1988, Eileen Kunkel owned the Extension. Her late husband, James, had located the Extension in 1952. She also owned a patented mining claim known as Red Poffrei, on land adjacent to the Extension. In 1988, she met the appellant, Maynard Campbell, and the two began mining the Extension the following year. At that time, Campbell had about ten years' experience as a prospector-miner.

In February and March of 1991, Campbell and Kunkel sent notices of intent to the Forest Service pledging that mining activity on the Extension would cover no more than half an acre and would involve no substantial surface disturbances. They referred the Forest Service to the Extension's 1985 plan of operations for further clarification. The 1985 plan of operations expressly indicated that timber would not be cut without Forest Service approval.

Only one month later, in April 1991, Campbell and Kunkel struck a deal with a commercial logger and a lumber purchaser to cut and sell timber from Red Poffrei and the Extension. Between July and November of that year, approximately nine acres of old growth timber were removed from the Extension.

In January 1992, several months after the timber harvest, Campbell and Kunkel sent a new notice of intent to the Forest Service. The new notice was substantially identical to the 1991 notice and did not indicate that the Extension had already been logged. After receiving the 1992 notice, the Forest Service sought additional assurances that there would be no logging on the Extension. Campbell and Kunkel replied: "Our immediate plans are to complete the patenting process. At this time it appears we should be able to achieve that objective without a tree harvest program.... Our operations are nothing new."

The unauthorized timber harvest was first discovered when wildlife biologists surveying areas within the Klamath National Forest for Northern Spotted Owl Habitat came across several berms, or earthen roadblocks, on a Forest Service access road that ran through the Extension. The biologists grew suspicious, and upon closer inspection discovered the scene of the crime. An undercover agent sent to investigate the Extension discovered that some efforts had been made to conceal the fact that the timber harvest had taken place on federal land. Markers indicating Forest Service boundary lines had been altered. The original corner monument from Red Poffrei, which bore the legend "U.S.D.A. Forest Service, unlawful to disturb," had been moved. Trees formerly adjacent to the moved monument, which had signs on them indicating the distance and direction to the original location of the monument, had that information scratched out. A tree bearing the distance to the original survey points had been cut and removed. Blaze marks on trees separating the patent land from the patent application land were covered with dirt and brown paint. When asked by the undercover agent about the logging, Campbell did not admit his role, and falsely stated that the trees had been logged by the Forest Service.

After a jury trial, Campbell was found guilty of stealing federal timber and damaging the Forest Service access road. He was sentenced to concurrent 24 month sentences on each count, and ordered to make $30,000 restitution. This appeal followed.

II. DISCUSSION

A. Primary Jurisdiction

Whether the district court should have applied the doctrine of "primary jurisdiction" to postpone criminal proceedings is a question of law we review de novo. United States v. Yellow Freight System, Inc., 762 F.2d 737, 739 (9th Cir.1985).

Campbell argues that criminal proceedings in the district court should have been suspended pending collateral review by the Bureau of Land Management ("BLM"). According to Campbell, the BLM should have been called upon to determine whether the BLM's patent application regulations required him to remove trees from the Extension in order to perfect his patent.

Campbell did not raise the issue of "primary jurisdiction" until after trial, and it may not now be heard. The entry of a judgment in this case resolved all issues bearing on matters within agency competence. Referral to the BLM at this stage would only produce pointless delay. "The doctrine of primary jurisdiction, despite what the term may imply, does not speak to the jurisdictional power of the federal courts." United States v. Bessemer and Lake Erie R. Co., 717 F.2d 593, 599 (D.C.Cir.1983) (Entry of a nolo plea to a conspiracy charge barred the defendant from raising the doctrine of primary jurisdiction for the first time on appeal.).

B. Title To The Surface Resources

Campbell next argues that the United States did not have legal title to the trees or access road. We review legal questions de novo. United States v. Hughes Aircraft Co., Inc., 20 F.3d 974, 977 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 482, 130 L.Ed.2d 395 (1994).

At the time of the unauthorized timber harvest, the Extension was an unpatented mining claim. Until a patent is issued, the government has broad authority to manage public lands. Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir.1993).

In United States v. Doremus, 888 F.2d 630 (9th Cir.1989), two miners cut timber on National Forest lands without an approved plan of operations. We upheld their convictions for damaging "any natural feature or other property of the United States" (36 C.F.R. Sec. 261.9(a)) (1987). We rejected the argument, raised by Campbell on this appeal, that in order to prosecute the government must first prove that the unauthorized logging was not "reasonably incident" to legitimate mining operations under 30 U.S.C. Sec. 612. Here, as in Doremus, "[t]he flaw in appellant's argument is that 30 U.S.C. Sec. 612 does not authorize mining operators to act without Forest Service approval, and the operating plan did not authorize the cutting of live trees." Id. at 635.

Campbell's reliance upon United States v. Cruthers, 523 F.2d 1306 (9th Cir.1975) is misplaced. In Cruthers, a miner cut 70 trees from his unpatented claim and used the timber to construct a residential cabin on private property adjacent to the claim, for purposes of working the unpatented claim. Cruthers reversed his conviction for timber theft under 18 U.S.C. Sec. 641.

The issue in Cruthers was whether, under 30 U.S.C. Sec. 612(c), timber cut from an unpatented mining claim must be used exclusively within the physical limits of the claim to be considered "reasonably incident" to legitimate mining operations. Cruthers found no such limitation as to place of use and held that the district court erred by instructing the jury that "a claimant to an unpatented claim may not cut or remove trees or logs for use for any purpose on private property." Id. at 1307. Cruthers does not hold that trees sprouting from unpatented claims in National Forests may be harvested and sold to a commercial lumber mill by persons lacking authorization from the Forest Service.

C. Sufficiency Of The Evidence

Campbell argues that the government failed to prove that the Extension is subject to post-1955 surface rights. We are constrained to disagree if, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (Emphasis in original).

The Surface Resources and Multiple Use Act of 1955 ("Surface Resources Act"), Pub.L. No. 84-167, 69 Stat. 367 (codified at 30 U.S.C. Secs. 611-612) applies to all unpatented mining claims "hereafter located," 30 U.S.C. Sec. 612(b), that is, located after July 23, 1955, the effective date of the act. Claims located after the date of the Act are subject to express statutory limitations on the miner's rights of use and possession.

Kunkel's pre-1955 surface rights were extinguished pursuant to 30 U.S.C. Sec. 613(a). In 1961, the local Forest Supervisor caused certified mail notices to be sent to mining claimants who had pre-1955 claims. At the same time, notice was published in the Siskiyou Daily News, a newspaper of general circulation in the county in which the Extension is located. In 1961, the Forest Supervisor signed an affidavit that contained a list of those notified, and James Kunkel's name was on that list. Later, a list of all notice letters that had been returned as undelivered was prepared by the Forest Service, and James Kunkel's name was not on that list. Official records of the United States reflect that a surface determination completed on June 30, 1967 indicated that all National Forest Surface management on the Extension was under the Jurisdiction of the National Forest. James Kunkel never disputed this: a plan of operations signed by him in 1985...