U.S. v. Curtis-Nevada Mines, Inc.

• Decision Date: 17 January 1980
• Docket Number: No. 76-3093,CURTIS-NEVADA,76-3093
• Citation: 611 F.2d 1277
• Parties: 10 Envtl. L. Rep. 20,191 UNITED STATES of America, Plaintiff-Appellant, v.MINES, INC., and Robert Curtis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1277

611 F.2d 1277

10 Envtl. L. Rep. 20,191

UNITED STATES of America, Plaintiff-Appellant, v. CURTIS-NEVADA MINES, INC., and Robert Curtis, Defendants-Appellees.

No. 76-3093.

United States Court of Appeals, Ninth Circuit.

Jan. 17, 1980.

Carl Strass, Washington, D. C., for plaintiff-appellant.

No appearance for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California. The Honorable Thomas J. MacBride, Presiding.

Before TRASK and HUG, Circuit Judges, and ORRICK ^*, District Judge.

HUG, Circuit Judge:

This case concerns the right of the general public to use the surface of land upon which unpatented mining claims have been located, when that use does not interfere with mining activities. The principal issue is whether the owner of unpatented mining claims has the right to exclude members of the general public from such use of the surface of the land for recreational purposes or access to other public lands unless they have obtained a specific governmental permit or license for such use. To resolve this issue, we are called upon to construe the provisions of the Surface Resources and Multiple Use Act of 1955 ("Multiple Use Act"), Pub.L.No.84-167, 69 Stat. 367 (codified at 30 U.S.C. §§ 611-612).

The United States brought this action to enjoin Curtis-Nevada Mines, Inc. and its president, Robert Curtis, from prohibiting members of the public from using the surface of appellees' unpatented mining claims for recreational purposes or for entrance to adjacent National Forest lands. Since 1970, appellees located approximately 203 mining claims on public lands administered by the Bureau of Land Management under the Department of the Interior and on lands within the Toiyabe National Forest administered by the Forest Service under the Department of Agriculture. These claims cover approximately 13 square miles; 21 of the claims are in Nevada and the remainder in California. This action arose after appellees prevented members of the public from entering their unpatented mining claims and barred access to several roads which crossed their claims. Jurisdiction is based upon 28 U.S.C. §§ 1291 and 1345.

The District Court, ruling on cross motions for summary judgment, held that under section 4(b) of the Multiple Use Act, 30 U.S.C. § 612(b), the public is entitled to use the surface of unpatented mining claims for recreational purposes and for access to adjoining lands, but that this use and access is available only to those members of the public who hold specific recreation licenses or permits from a state or federal agency. United States v. Curtis-Nevada Mines, Inc., 415 F.Supp. 1373 (E.D.Cal.1976). The United States appeals from the portion of the judgment that allows access to the mining claims only to those persons having specific written licenses or permits from a state or federal agency. We reverse that portion of the judgment and affirm the remainder of the judgment.

I

Curtis states that he located and filed the 203 claims after stumbling upon an outcropping of valuable minerals while on a deer hunting trip. He states that, within this 13-mile area, he has located gold, platinum, copper, silver, tungsten, pitchblend, palladium, triduim, asmium, rhodium, ruthenium, scanduim, vanduim, ytterbuim, yttrium, europium, and "all the rare earths." These minerals he maintains have a value in the trillions. The mining activity of the appellees was very limited. At the time this litigation was instituted there was only one employee, who performed chiefly caretaking duties such as watching after equipment and preventing the public from entering the claims.

Hunters, hikers, campers and other persons who had customarily used the area for recreation were excluded by the appellees. Curtis posted "no trespassing" signs on the claims and constructed barricades on the Blackwell Canyon Road and the Rickey Canyon Road, which lead up into the mountains and provide access to the Toiyabe National Forest. After receiving numerous complaints, the United States filed this action asserting the rights of the general public to the use of the surface of the mining claims. The district court heard the matter on cross motions for summary judgment and held:

(A)ny member of the public, who possesses a license or permit from any state or federal agency which allows that person to engage in any form of recreation on public land, including National Forests, can enter onto the surface of unpatented mining claims in order to engage in that recreation, or to gain access to another area to engage in that recreation, so long as there is no interference with ongoing mining operations.

415 F.Supp. at 1378. The court denied the request of the United States that Curtis be enjoined from using guards or manned gates. The court held that Curtis can use gates or barricades if personnel are available to remove the barricades for persons requesting admittance with a proper permit.

II

Section 4(b) of the Multiple Use Act provides in pertinent part:

Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto . . . .

30 U.S.C. § 612(b).

As noted by the district court, the meaning of "other surface resources" and of "permittees and licensees" is somewhat ambiguous. The principal issues in this case are whether recreational use is embodied within the meaning of "other surface resources" and whether the phrase "permittees and licensees" includes only those members of the public who have specific written permits or licenses. We agree with the district court that administrative interpretation of the language by the Solicitor's Office in the Department of Interior does not provide any clear direction in the construction of this section of the statute, 415 F.Supp. at 1378.

We look first to the legislative history of the Act. As this court has previously noted, Congress did not intend to change the basic principles of the mining laws when it enacted the Multiple Use Act. Converse v. Udall, 399 F.2d 616, 617 (9th Cir. 1968), Cert. denied, 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 569 (1969). The Multiple Use Act was corrective legislation, which attempted to clarify the law and to alleviate abuses that had occurred under the mining laws. H.R.Rep.No.730, 84th Cong., 1st Sess. 7-8, Reprinted in (1955) 2 U.S.Code Cong. & Admin.News, pp. 2474, 2480 (hereinafter House Report 730); Converse, 399 F.2d at 617. The statute was designed to provide for "multiple use of the surface of the same tracts of public lands, compatible with unhampered subsurface resource development." H.R.Rep.No.730 at 8, U.S.Code Cong. & Admin.News, p. 2480; 101 Cong.Rec. 8743 (1955). The purpose of the Multiple Use Act as stated broadly in House Report 730 is:

to permit more efficient management and administration of the surface resources of the public lands by providing for multiple use of the same tracts of such lands.

. . . to prohibit the use of any hereafter located unpatented mining claim for any purpose other than prospecting, mining, processing, and related activities.

. . . to limit the rights of a holder of an unpatented mining claim hereafter located to the use of the surface and surface resources.

H.R.Rep.No.730 at 2, U.S.Code Cong. & Admin.News, pp. 2474-75. ¹

This concept of multiple use of surface resources of a mining claim was not intended, however, to interfere with the historical relationship between the possessor of a mining claim and the United States.

This language, carefully developed, emphasizes the committee's insistence that this legislation not have the effect of modifying long-standing essential rights springing from location of a mining claim. Dominant and primary use of the locations hereafter made, as in the past, would be vested first in the locator; the United States would be authorized to manage and dispose of surface resources, or to use the surface for access to adjacent lands, so long as and to the extent that these activities do not endanger or materially interfere with mining, or related operations or activities on the mining claim.

Id. at 10, U.S.Code Cong. & Admin.News, p. 2483.

Under the general mining law enacted in 1872, ² individuals were encouraged to prospect, explore and develop the mineral resources of the public domain through an assurance of ultimate private ownership of the minerals and the lands so developed. The system envisaged by the mining law was that the prospector could go out into the public domain, search for minerals and upon discovery establish a claim to the lands upon which the discovery was made. This required location of the claim, which involved staking the corners of the claim, posting a notice of location thereon and complying with the state laws concerning the filing or recording of the claim in the appropriate office. A placer mining claim cannot exceed 20 acres and a lode claim cannot be larger than 1500 feet by 600 feet (which is slightly over 20 acres). The locator thus obtained "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations." 30 U.S.C. § 26.

Before the 1955 Act this...