U.S. v. Fennell, CIV. 03-1450 ACT/RHS.

Decision Date06 June 2005
Docket NumberNo. CIV. 03-1450 ACT/RHS.,CIV. 03-1450 ACT/RHS.
Citation381 F.Supp.2d 1300
PartiesUNITED STATES of America, Plaintiff/Counter-Defendant, v. Jerry FENNELL and Adam Marquez, Defendants/Counter-Plaintiffs.
CourtU.S. District Court — District of New Mexico

Howard R. Thomas, John Zavitz and Cassandra Casaus Currie, Albuquerque, NM, for Plaintiff/Counter Defendant.

Stuart R. Butzier and Zachary L. McCormick Albuquerque, NM, for Defendants/Counter-Plaintiffs.


TORGERSON, United States Magistrate Judge.

THIS MATTER comes before the Court on Plaintiff's Motion for Partial Summary Judgment regarding Federal Ownership and Management of the Subject Lands filed March 1, 2005 (Docket No. 43) and Defendants' Motion for Summary Judgment on Land Status Issues filed March 1, 2005 (Docket No. 45). The Motions were filed pursuant to a Stipulated Order Setting Filing and Briefing Schedule for Cross-Motions for Summary Judgment Regarding Land Status. Docket No. 32. The parties are seeking a ruling as to whether Plaintiff owns the land at issue in this matter. Upon review of the pleadings and being otherwise advised in the premises, the Court finds that Plaintiff's Motion for Partial Summary Judgment regarding Federal Ownership and Management of the Subject Lands will be granted and Defendants' Motion for Summary Judgment on Land Status issues will be denied.


Plaintiff filed a "Complaint for Trespass & Ejectment, Damages and Injunctive Relief" ("Complaint") on December 19, 2003. Docket No. 1. The Complaint alleges that this action "arises under common law trespass, the National Forest Organic Administrative Act of 1897, 16 U.S.C. § 551, and regulations of the Secretary of Agriculture, 36 C.F.R. §§ 228, 251, and 261." Complaint, ¶ 1. The Complaint asserts that the lands and buildings occupied by Defendants are within the Lincoln National Forest ("LNF"). Complaint, ¶¶ 5,6,7,15,16, and 17. Paragraphs 17 through 30 of the Complaint allege that there have been more than ten years' worth of attempts, on "numerous occasions," to convince "Defendants to cease their unauthorized occupancy and residency of the lands..." Defendants filed their Answer and Counterclaims ("Answer") on May 3, 2004. Docket No. 8. Defendants claim they are owners of unpatented mining claims under the 1872 Mining Law and that their residency is incident to their alleged gold mining. Answer, p. 2., ¶¶ 16, p. 25-26, ¶¶ 23-26. Defendants assert that the subject land is not Federal land and not part of the LNF. Answer, p. 2., ¶ 5, p. 11-16, ¶¶ 3-9, pp. 21-22, ¶¶ 8-11; pp. 29-30, ¶ 41.

Quiet Title Act.

To the extent that the Defendants are attempting to adjudicate title to the land at issue, the Court does not have jurisdiction. To quiet title in public lands, suit must be brought under the Quiet Title Act, 28 U.S.C. § 2409a. The Quiet Title Act permits the United States to be named as a party defendant in a civil action "to adjudicate disputed title to real property in which the United States claims an interest, other than a security interest or water rights." Id. The Quiet Title Act requires Defendants to assert "with particularity the nature of right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States." Id. at 2409a(d). Defendants have neglected to do so and any claim pursuant to the Quiet Title Act by the Defendants must therefore fail.

Legal standard.

Under Rule 56, any party may move for summary judgment. Fed.R.Civ.P. 56(a) and (b). The moving party initially carries the burden of pointing out to the trial court that there is an absence of evidence to support the nonmoving party's case, although the moving party need not affirmatively negate the nonmovants claim in order to obtain summary judgment. Allen v. Muskogee, Oklahoma, 119 F.3d 837, 839 (10th Cir.1997), cert. denied, 522 U.S. 1148, 118 S.Ct. 1165, 140 L.Ed.2d 176 (1998) (citing Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the movant has met this burden, the nonmoving party must go beyond the pleadings and show that a genuine issue of material fact exists that would require a trial. Bacchus Industries., Inc. v. Arvin Industries., Inc., 939 F.2d 887, 891 (10th Cir.1991). In ruling on a summary judgment motion, the Court examines the factual record and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Allen, 119 F.3d at 839-40. Where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir.1995). As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Id.

Factual background.

The parties do not dispute the following facts:

1. Defendants' unpatented mining claims are located within an area in New Mexico know in official surveys as portions of Sections 3, 14, 15, 22 and 23 of Township 5 South Range 12 East (T5S R12I).

2. The subject area is included within an official survey by the United States Department of the Interior, General Land Office in 1928, which survey was approved in 1930.

The Court finds that the following additional facts have been established by the Plaintiff. The subject area is located within lands acquired by the United States of America through the Treaty of Guadalupe Hidalgo in 1848. The lands on which the subject area is located have never left the ownership of the United States of America since they were acquired through the Treaty of Guadalupe Hidalgo. The subject area is located within lands added to the LNF through the Presidential Proclamation of President Theodore Roosevelt, dated April 24, 1907 ("1907 Proclamation"). There were no exceptions within the subject area to the 1907 Proclamation.

Plaintiff submitted affidavits and declarations from the following individuals in support of these facts:

1. Kenneth Calhoun is the Geographic Information Systems (GIS) Manager for Daniel B. Stephens & Associates, Inc. in Albuquerque New Mexico. He provides in his affidavit geographic perspectives of the subject area. He states that there are a "number of unpatented mining claims" within the subject area. Exhibit 1, Calhoun Affidavit, ¶ 4.

2. Patrick J. Hickey is the Regional Land Surveyor, for Region 3 of the United States Forest Service. Exhibit 2, Hickey declaration, ¶ 1 He attaches to his declaration the Forest Service Land Status Plat of the lands in the subject area and states that the "Status Plat is a part of the official United States Forest Service land status record system, and shows the land status of the area within this Township." Id. at ¶ 11. Additionally, "[a]ccording to the Forest Services' official land status record system, and as shown by the attached Status Plat, the areas encompassed by the unpatented mining claims listed above is and has been in the ownership of the United States of America, United States Forest Service, and identified as reserved public domain, with an action (Presidential Proclamation by President Theodore Roosevelt) of April 24, 1907." Id. at ¶ 13. Moreover, the Status Plat shows that "[t]here are no townsites, homesteads, settlements, or other conveyances out of the United States ownership" in the subject area. Id. at ¶ 16. Hickey filed a second declaration as Exhibit 1 to Plaintiff's Response to Defendants' Motion for Partial Summary Judgment. In this declaration he states that notes on Status Plats have nothing to do with land status or ownership of the land. Id. at ¶ 4. He further states that the "feature or point of reference labeled `Jicarilla' on the Status Plat is not itself a patented area, and is not within a patented area." Id. at ¶ 6.

3. Marcella Montoya is a Supervisory Legal Technician of the United States Bureau of Land Management ("BLM"), New Mexico State Office. Ms. Montoya is the official custodian of the BLM'S land and mineral status records in the BLM New Mexico State Office. Attached to her declaration is a copy of the "BLM's Township Survey Plat and BLM's Master Title Plat for the area known as Township 5 South Range 12 East New Mexico Principal Meridian." Exhibit 3, Montoya declaration, ¶¶ 6 and 7. Also attached is a certified copy of the April 24, 1907 Proclamation by President Theodore Roosevelt (Lincoln National Forest, New Mexico, Fourth Proclamation), with the diagram that forms a part of this Proclamation. In a second declaration Ms. Montoya has attached is a certified copy of the general field survey notes for the BLM's Township Survey Plat for the area known as Township 5 South Range 12 East New Mexico Principal Meridian. Exhibit 4, Montoya declaration, ¶ 6.

4. John N. Patterson is an attorney with the firm of Scheuer, Yost & Patterson, Santa Fe, New Mexico. He states that it is his "opinion that the Subject Property is the property of the United States of America, has been owned by the United States of America since February 2, 1848, the date the area including New Mexico was ceded to the United States." Exhibit 5, Patterson affidavit, ¶ 19. The affidavit also states that it is his "opinion that the Subject Property is part of the Lincoln National Forest, and has been since April 24, 1907." Id.

5. Ida T. Viarreal is a Land Law Examiner for the BLM. Attached to her declaration are "certified copies of the current location notices for [certain] unpatented mining claims within the LNS." Exhibit 6, Viarreal declaration, ¶ 4.

The Court finds that the following facts have been established by the Defendants. Defendants occupy the subject area. The area occupied by Defendant Fennell is identified as "Jicarilla" on a Forest Service map. "Jicarilla" was a Hispanic settlement by the...

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