U.S. v. Good

• Decision Date: 16 April 2003
• Docket Number: No. CIV.A. 02-7022 M.,CIV.A. 02-7022 M.
• Parties: UNITED STATES of America, Plaintiff, v. Quentin H. GOOD, Defendant.
• Court: U.S. District Court — District of Colorado

Page 1306

257 F.Supp.2d 1306

UNITED STATES of America, Plaintiff, v. Quentin H. GOOD, Defendant.

No. CIV.A. 02-7022 M.

United States District Court, D. Colorado.

April 16, 2003.

Pamela R. Mackey, Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, PC, Denver, CO, Richard N. Stuckey, Richard N. Stuckey, P.C., Denver, CO, for Defendant.

George E. Gill, United States Attorney's Office, Denver, CO, for U.S.

MEMORANDUM OF DECISION AND ORDER

BOLAND, United States Magistrate Judge.

Quentin Good is the locator of an unpatented mining claim known as the Dream-time Mine. He is charged by a Second Amended Information with six counts of violating federal regulations governing the use of United States Forest land. Specifically, Mr. Good is charged with the following:

Count I: On or about March 16, 2001, damaging a natural feature or other property of the United States by digging a trench with a mechanized backhoe without authorization or approval, and aiding, abetting, and inducing another in the commission of this offense, in violation of 36 C.F.R. § 261.9(a);

Count II: On or about April 25, 2001, damaging a natural feature or other property of the United States by digging a trench with a mechanized backhoe without authorization or approval, and aiding, abetting, and inducing another in the commission of this offense, in violation of 36 C.F.R. § 261.9(a);

Count III: On or about September 25, 2001, damaging a natural feature or other property of the United States by digging a trench with a mechanized backhoe without authorization or approval, and aiding, abetting, and inducing another in the commission of this offense, in violation of 36 C.F.R. § 261.9(a);

Count IV: On or about November 21, 2000, threatening, resisting, intimidating, and interfering with a Forest Service officer in the performance of her official duties, in violation of 36 C.F.R. § 261.3(a);

Count V: Between September 25, 2001, and October 8, 2002, damaging a natural feature or other property of the United States by digging a trench with a mechanized backhoe without authorization or approval, in violation of 36 C.F.R. § 261.9(a); and

Count VI: Between September 25, 2001, and October 8, 2002, constructing, placing, and maintaining an A-frame structure on National Forest land without a special use authorization, contract, or approved operating plan, in violation of 36 C.F.R. § 261.10(a).

Each of the counts charged is a Class B misdemeanor. 18 U.S.C. § 3559(a)(7); 36 C.F.R. § 261.1b. A Class B misdemeanor is a petty offense. 18 U.S.C. § 19. There is no right to a jury trial where the charge is a petty offense, Fed.R.Crim.P. 58(b)(2)(F); consequently, I conducted a bench trial of the charges against Mr. Good on April 8-10, 2003. Although not requested to do so by the parties, this Memorandum of Decision and Order contains specific findings of fact consistent with the provisions of Fed. R.Crim.P. 23(c). See United States v. Unset, 165 F.3d 755, 760 and n. 3 (10th Cir. 1999).

I.

This case, like many before it, involves a conflict between the rights of an individual to prospect and develop mineral resources on public lands, and the power and duties of the United States Forest Service to manage the surface resources of the National Forests. See, e.g., United States v. Etcheverry, 230 F.2d 193 (10th Cir.1956); United States v. Shumway, 199 F.3d 1093 (9th Cir.1999); United States v. Brunskill, 792 F.2d 938 (9th Cir.1986); United States v. Richardson, 599 F.2d 290 (9th Cir.1979); Teller v. United States, 113 F. 273 (8th Cir.1901). "[T]he important interest in developing mineral resources on public lands under the mining law may come into conflict with the equally important interest in protecting our National Forests for future use." Brunskill, 792 F.2d at 939.

To be fully understood, the charges against Mr. Good must be considered in view of the following historical and legal backdrop:

The statutory right to mine on public lands is long-standing. The Mining Law of 1872 provides:

[A]ll valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.

30 U.S.C. § 22. The 1872 Act also reserves to a mineral claimant "the exclusive right of possession and enjoyment of all surface included within the lines of their locations." Id. at § 26.

The rights of miners to use public lands were affected by the Organic Administration Act of 1897, which established the National Forest system and authorized the Secretary of Agriculture to promulgate rules and regulations to protect those forest lands from destruction and depredation. 16 U.S.C. §§ 478 and 551; see United States v. Richardson, 599 F.2d at 292. Particularly relevant here is section 551, which provides:

The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which may have been set aside or which may hereafter be set aside under the provisions of section 471 of this title, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use to preserve the forests thereon from destruction....

16 U.S.C. § 551.

Thus, the Secretary of Agriculture since 1897 has had the authority to promulgate regulations concerning the methods of prospecting and mining in national forests. United States v. Langley, 587 F.Supp. 1258, 1264 (E.D.Cal.1984). Under that authority, regulations were promulgated on August 28, 1974, which now appear at 36 C.F.R. Part 228. Id.

Despite the language of the 1872 Mining Act that claimants "shall have the exclusive right of possession and enjoyment of all [the] surface," courts have limited those rights to uses reasonably related to mining operations. 2 American Law of Mining § 34.02[3] at p.34-8 (Rocky Mountain Mineral Law Foundation ed., 2002). For example, in Teller v. United States, 113 F. 273 (8th Cir.1901), the defendant was convicted of a crime of unlawfully cutting and exporting timber from public lands of the United States, including from an unpatented mining claim. In affirming the conviction, the court of appeals said:

While [the defendant's] location [of an unpatented claim] so far segregated and withdrew the land from the public domain that no rival claimant could successfully initiate any right to it until his location was avoided and his entry was cancelled, ... it gave him nothing but "the right of present and exclusive possession" for the purpose of mining. It did not divest the legal title of the United States, or impair its right to protect the land and its product, either by civil or criminal proceedings, from trespass or waste.

Id. at 281 (emphasis added; internal citations omitted).

More recently, the Tenth Circuit Court of Appeals held in United States v. Etcheverry, 230 F.2d 193, 195 (10th Cir.1956), that the locator of an unpatented mining claim is not entitled to lease the surface of the claim for grazing of livestock, stating:

The right of the locator [of an unpatented mining claim] to use the surface for purposes other than for mining, or the right to dispose of timber, grass or other materials on or under the surface of the lands was not under consideration. We construe these cases to hold that the exclusive possession of the surface of the land to which the locator is entitled is limited to use for mining purposes.

(Emphasis added.) Accord United States v. Bagwell, 961 F.2d 1450 (9th Cir.1992)(affirming the eviction of a mill site claimant holding under an unpatented claim where the site was used "primarily for residence and livestock purposes rather than mining or milling purposes"); United States v. Nogueira, 403 F.2d 816 (9th Cir.1968)(holding that the United States may prevent the holder of an unpatented mining claim from using the surface for a residence wholly unrelated to any mining activity whatsoever).

The rights of miners on public lands also were affected by the enactment of the Multiple Surface Use Act of 1955. That Act provides in relevant part:

(a) Prospecting, mining or processing operations

Any mining claim hereafter located under the mining laws of the United States shall not be used, prior to issuance of patent therefor, for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto.

(b) Reservations in the United States to use of the surface and surface resources

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).

30 U.S.C. § 612.

The Multiple Surface Use Act did not change the basic principles of the mining laws. United States v. Curtis-Nevada Mines, Inc., 611 F.2d 1277, 1280 (9th Cir. 1980). Instead, it codified previous court decisions, including Teller and Etcheverry, by statutorily precluding uses of mining claims, prior to the issuance of a patent, for any purposes other than prospecting, mining, or processing operations, and uses reasonably incident to those purposes. 1 American Law of Mining, supra, § 32.01 at p.32-4. As the court explained in the Curtis-Nevada Mines case:

The Multiple Use Act was corrective legislation, which attempted to clarify the law and to...