U.S. v. Doremus

• Decision Date: 31 October 1989
• Docket Number: No. 87-3831,87-3831
• Citation: 888 F.2d 630
• Parties: 20 Envtl. L. Rep. 20,316 UNITED STATES of America, Plaintiff-Appellee, v. Rory DOREMUS and David Doremus, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 630

888 F.2d 630

20 Envtl. L. Rep. 20,316

UNITED STATES of America, Plaintiff-Appellee, v. Rory DOREMUS and David Doremus, Defendants-Appellants.

No. 87-3831.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1988.

Decided Oct. 31, 1989.

Before POOLE, CANBY and LEAVY, Circuit Judges.

POOLE, Circuit Judge:

Appellants Rory and David Doremus were convicted of violating United States Forest Service regulations which prohibit "[d]amaging any natural feature or other property of the United States" (36 C.F.R. Sec. 261.9(a) (1987)) and "[v]iolating any term or condition of ... [an] approved operating plan" (36 C.F.R. Sec. 261.10(k) (1987)). On appeal, appellants contend that their activity was permissible as "reasonably incident" to their mining operation (see 30 U.S.C. Sec. 612 (1982)) and that the regulations are unconstitutionally vague. We affirm.

FACTS AND PROCEEDINGS BELOW

Appellants are brothers who have staked mining claims in the Red River Ranger District of the Nez Perce National Forest in central Idaho. Since 1972, appellants have conducted mining operations on these claims under operating plans approved by the Forest Service.

On May 13, 1985, the operating plan at issue was executed by Rory Doremus and Jerry Dombrovske, District Ranger for the Red River Ranger District. Paragraph IV of the plan provides that "[t]he area of exploration will be concentrated to the clear cut," and that "[n]o more than five trenches will be open at one time." The magistrate found that the latter provision was proposed by the appellants. The plan also prohibited the cutting of live, green trees for firewood and provided that "[i]f timber is needed operator is asked to cut small dead timber." The plan neither expressly authorized nor expressly prohibited the removal of live trees in conducting the mining operation.

Between July 23 and July 31, 1985, Forest Service representatives visited the site and observed more than 30 open trenches, some larger than 10 feet by 30 feet, crisscrossing more than 1 1/4 acres. ¹ Several trees has been pushed over, and a road had been constructed through the trees on one side of the claim. Violation notices were issued, and appellants were tried before a federal magistrate on March 14, 1986. On June 18, 1986, the magistrate issued a memorandum opinion denying the Doremuses' motion to dismiss and finding them guilty beyond a reasonable doubt. The Doremuses appealed to the district court, which affirmed their convictions. United States v. Doremus, 658 F.Supp. 752 (D.Idaho 1987).

STANDARD OF REVIEW

The questions presented involve the construction of federal law and its application to essentially undisputed facts, and therefore they are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201-02 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The factual findings of the magistrate will not be overturned unless they are clearly erroneous. United States v. Nance, 666 F.2d 353, 356 (9th Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982).

DISCUSSION

I. STATUTORY CHALLENGES

A. Applicability of Regulations

Appellants' first argument is that they are exempted from the prohibitions of 36 C.F.R. Part 261 by the proviso which states:

Nothing in this part shall preclude activities as authorized by ... the U.S. Mining Laws Act of 1872 as amended.

36 C.F.R. Sec. 261.1(b) (1987). Appellants contend that their activities were authorized by statute and that therefore the regulations do not prohibit such activities.

Appellants' statutory rights derive from the provision in the 1872 Act which reserves to the claimant "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations." 30 U.S.C. Sec. 26 (1982). This right was limited by the Surface Resources and Multiple Use Act of 1955, which reserved to the United States the right to manage and dispose of surface resources on unpatented mining claims; however, the 1955 Act provides that such use shall not "endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto." 30 U.S.C. Sec. 612(b) (1982). The same statute also prohibits the removal of vegetative surface resources "[e]xcept to the extent required for the mining claimant's prospecting, mining or processing operations and uses reasonably incident thereto, ... or to provide clearance for such operations or uses." 30 U.S.C. Sec. 612(c).

Appellants argue that the effect of 36 C.F.R. Sec. 261.1(b) is to exempt mining operations from the general prohibitions of Part 261, thereby limiting the regulation of mining operations to 36 C.F.R. Part 228. We reject this argument. Part 228 does not contain any independent enforcement provisions; it only provides that an operator must be given a notice of noncompliance and an opportunity to correct the problem. 36 C.F.R. Sec. 228.7(b) (1987). The references to operating plans in Sec. 261.10 would be meaningless unless Part 261 were construed to apply to mining operations, since that is the only conduct for which operating plans are required under Part 228. In addition, 16 U.S.C. Sec. 478 (1982), which authorizes entry into national forests for "all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof," specifically states that "[s]uch persons must comply with the rules and regulations covering such national forests." This statutory caveat encompasses all rules and regulations, not just those (such as Part 228) which apply exclusively to mining claimants. In this context, Sec. 261.1(b) is merely a recognition that mining operations "may not be prohibited nor so unreasonably circumscribed as to amount to a prohibition." United States v. Weiss, 642 F.2d 296, 299 (9th Cir.1981).

B. Validity of Regulations

Next, appellants argue that even if Part 261 applies to them, the Forest Service is barred by 30 U.S.C. Sec. 612 from prohibiting any conduct unless it proves that the conduct was not "reasonably incident" to their mining operation. The district court rejected this argument, holding that "the operating plan itself becomes the definition of what is reasonable and significant conduct under the circumstances," and that therefore any violation of the operating plan was per se unreasonable under the statute. 658 F.Supp. at 755. The district court also held that the regulations did not conflict with 30 U.S.C. Sec. 612 because "th[e] regulatory right is limited so as not to endanger or materially interfere with mining operations." Id. at 756, citing United States v. Richardson, 599 F.2d 290 (9th Cir.1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 663, 62 L.Ed.2d 643 (1980).

We agree with the district court that 36 C.F.R. Sec. 261.10(k) is consistent with the mining laws. The regulatory scheme of requiring a notice of intent to operate and approval of an operating plan is a reasonable method of administering the statutory balance between "the important interests involved here [which] were intended to and can coexist." Weiss, 642 F.2d at 299. The purpose of requiring prior approval is to resolve disputes concerning the statutory balance before operations are begun, not after. If the appellants were unsatisfied with the conditions of the plan, they could have appealed to the Regional Forester under 36 C.F.R. Sec. 228.14 (1987). His decision would then be subject to review under the Administrative Procedure Act. See 5 U.S.C. Secs. 701 et seq. (1982); cf. Sabin v. Butz, 515 F.2d 1061, 1065 (10th Cir.1975) (recognizing jurisdiction under APA to review denial of special use permit). David Doremus admitted in his opening brief that appellants recognized that an appeal was a possible course of action and deliberately chose to forego it. David Doremus' Opening Brief at 23. ² Having failed to appeal the plan, appellants may not now complain that the restriction limiting appellants to five open trenches was "unreasonable." See United States v. Brunskill, 792 F.2d 938, 941 (9th Cir.1986) (refusing to consider merits of operating plan where defendants did not appeal rejection of proposed plan); cf. United States v. Curtis-Nevada Mines, Inc., 611 F.2d 1277, 1286 (9th Cir.1980) (enjoining claimant from prohibiting public recreational use on his claim; noting that claimant could protest to federal agency and, if unsatisfied, bring lawsuit).

We also agree that 36 C.F.R. Sec. 261.9(a) does not conflict with the mining laws. This provision is subject to Sec. 261.1(b), which incorporates appellants' statutory rights under 30 U.S.C. Sec. 612. However, although appellants have a right to dispose of vegetative resources where such disposal is "reasonably incident" to their mining operation, they may not exercise that right without first obtaining approval of their operation in the manner specified in 36 C.F.R. Part 228. If appellants believed that their operation required the removal of trees and that the plan failed to accomodate that need, their remedy was to appeal the plan prior to commencing operations. Appellants may not blithely ignore Forest Service regulations and argue afterward that their conduct was "reasonable."

Appellants argue, however, that Richardson holds that the government must show that their conduct was unreasonable in order to prohibit it. We disagree. In Richardson, the government filed a civil action to enjoin the Richardsons from blasting and bulldozing on their mining claims and to require restoration of the surface. The court specifically noted that although "the Secretary of Agriculture has ... authority under sections 478 and 551 of Title 16 to promulgate regulations concerning the methods of prospecting and mining in national forests; ... [n]o such regulations were in effect before this lawsuit was commenced." 599 F.2d at 292. In the absence of any regulatory guidance, the court looked directly...