U.S. v. Lex

Decision Date14 May 2003
Docket NumberNo. CR S-01-559 LKK.,CR S-01-559 LKK.
Citation300 F.Supp.2d 951
PartiesUNITED STATES of America, Appellee, v. Ronald O. LEX; and Kenneth Waggener, Appellants.
CourtU.S. District Court — Eastern District of California

Timothy L Zindel, Federal Defender, Sacramento, CA, for Ronald O Lex (1), defendant.

Krista Joy Hart, Law Offices of Krista J Hart, Sacramento, CA, for Kenneth Waggener (2), defendant.

Samantha Sue Spangler, United States Attorney, Sacramento, CA, for U.S. Attorneys.


KARLTON, Senior District Judge.

Federal regulations define the right to use federal land. They prohibit, inter alia, the:


(b) Taking possession of, occupying, or otherwise using National Forest System lands for residential purposes without a special-use authorization, or as otherwise authorized by Federal law or regulation

36 C.F.R. 261.10(b) and provide for criminal sanctions for violation.1

Appellants were prosecuted before a United States Magistrate Judge for a violation of the above regulation. They brought a Rule 29 motion at the close of the government's case, contending that they were not guilty because they were "otherwise authorized" to camp on National Forest land by virtue of a mining claim. The magistrate judge denied appellants' motion and appellants were ultimately convicted.

Appellants seek review and ask that this court remand for a judgment of acquittal or, in the alternative, that their convictions be vacated and their cases be remanded to the magistrate judge for a new trial.


The evidence at trial showed that appellants had a motor home, travel trailer, pickup truck, and sedan on National Forest System lands adjacent to Cecil Creek. On September 17, 2000, appellants told Forest Service Officer Michael Irvine that they had been living in the trailer and motor home since the suction dredge season began, approximately July 1, 2000. ER at 22:21-23:4. On September 29, ER at 0026, and again on November 4, 2000, ER at 0035, Irvine found appellants were still there. Appellants told Irvine that they believed they were authorized to stay on the land by virtue of their mining activities. ER at 0042, 0100:8-22, 0102:4-14.

On his visits to the appellants' camp, the officer testified that he observed no earthmoving equipment such as bulldozers or backhoes. ER at 0032:4-9. He reached the camp using existing roads that had not been modified or changed. ER at 0033:9-15. He observed that the camp consisted of vehicles and some mining equipment, including "a pan, a sifter," "some wading clothes, ... and at the creek, which was away from the camp, a portable suction dredge." ER at 0033-34:7. The officer observed no structures built on the campsite, and "everything ... there for the purposes of camping had wheels...." ER at 0036:15-19.

Appellant Lex testified that appellants camped in a motor home and used a trailer for their tools. ER at 0085:1-4. They cooked inside the motor home and hauled their garbage to the Scott River collection site. ER at 0085:12-14. The motor home had an inside commode that appellants used for a bathroom, ER at 0085:15-16, and they disposed of grey water (from washing) and black water (containing human waste) off site. ER at 0085:17-0086:9. Appellants did not cut down any trees. ER at 0084:21-22.

Officer Irvine testified that appellants had no other address but a post office box. ER at 0045:15-24. Appellant Lex admitted at trial that he continually occupied the site from September 17, through November 4, 2000, and that he had no other residence at that time. ER at 0100:3-7.

Appellant Lex testified that he had located the claim on which appellants were camping, and subsequently recorded it with the County on September 6, 2000. See ER at 94:24-95:10. He also testified at trial that he had timely filed that location with the BLM, but the filing had been returned because appellants had overpaid. ER at 0102:15-23; 0104:6-131; 0106:21-107:6. The documentary evidence at trial appears to pertain to two different locations. One location, titled Cecil Creek # 1, occurred on July 12, 2000. See Defs' Exh. D. The other, titled Wild Turkey # 1, occurred on November 15, 2000. See Defs' Exh. E. The documentary evidence showed that the Wild Turkey location was filed with the BLM on November 20, 2000. Govt's Exh. 15. There was no documentary evidence showing if or when the Cecil Creek location was filed with the BLM. At trial, it was never explained which of the two locations referred to the parcel on which appellants' had been staying, or whether both included the appellants' campsite.

On November 4, 2000, appellants were cited for residing on National Forest land without authorization in violation of 36 C.F.R. 261.10(b). See ER at 0001, 0002.


Where appellants challenge a lower court's denial of their Rule 29 motion, the scope of review depends upon whether the defendants proceeded with their defense after the denial. Where, as here, defendants did proceed, the motion is deemed to be waived. The court can, of course, review the denial of defendants' renewed motion at the close of trial, but review of the denial of the later motion must take into account all of the evidence. See United States v. Alexander, 48 F.3d 1477, 1490 n. 10 (9th Cir.1995).2

Where a district court reviews a conviction by a magistrate judge, the standard of review is the same as when a court of appeals reviews the judgment of a district court. See Fed.R.Crim.P. 58(g)(2)(D). The reviewing court reviews the trial court's findings of fact for clear error. Burlington Northern, Inc. v. Weyerhaeuser Co., 719 F.2d 304, 307 (9th Cir.1983). "A finding of fact is deemed clearly erroneous when although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made." Id. Conclusions of law are reviewed de novo. Id. Unless a mixed question of fact and law is primarily factual, mixed questions are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.1984) (en banc).


The offense for which appellants were convicted has three elements: 1) occupying or using Forest Service land, 2) for residential purposes, 3) without a special-use authorization or as otherwise authorized by Federal law. See 36 C.F.R. § 261.10(b), supra. The first element is not in dispute. Appellants, however, take issue with the magistrate judge's findings as to the second and third elements. They argue that the magistrate judge erroneously relied on a regional camping order to determine that they were on the land for residential purposes, and that the magistrate judge incorrectly determined that they were not authorized to camp on the land by virtue of their mining activity. As I explain below, while I have not adopted many of appellants' underlying arguments, I nonetheless agree with their conclusions. Before undertaking that explanation however, I briefly discuss the basics of mining law pertinent to this case and clarify the meaning of certain terms of art that may otherwise be misused or misunderstood.


Under the Mining Law of 1872, miners are given varying rights to the land that they mine, depending upon what stage they have completed in the process of patenting a mining claim. The first stage is referred to as the "location" of a claim. Location is generally achieved by marking a parcel of land.3 See United States v. Shumway, 199 F.3d 1093, 1099 (9th Cir.1999). Upon location, the locators of the claim "so long as they comply with the laws ... shall have exclusive right of possession and enjoyment of all the surface located within the lines of their locations ...." 30 U.S.C. § 26; Shumway, 199 F.3d at 1099. Thus, although the locator has no patent, at this point he nonetheless has an interest in the land. See Shumway, 199 F.3d at 1100 (citing Bradford v. Morrison, 212 U.S. 389, 394, 29 S.Ct. 349, 53 L.Ed. 564 (1909) (unpatented "title of locator" is "property in the fullest sense of the word")).

To retain one's interest in an unpatented claim certain requirements must be met. First, under the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1744, owners of unpatented claims must record those claims with the Bureau of Land Management ("BLM") within ninety days of location, and annually thereafter. The failure to timely record a claim "shall be deemed conclusively to constitute an abandonment of the mining claim ...."4 43 U.S.C. § 1744(c); See also 43 C.F.R. § 3833.4(a)(2). Second, owners of unpatented claims are required to perform "not less than $100 worth of labor ... or improvements made during each year." 30 U.S.C. § 28.

Following location, a claim owner may apply for a patent with the BLM, showing compliance with the laws regarding location and filing proof that they posted notice of their application for a patent. See Shumway, 199 F.3d at 1099; 30 U.S.C. § 29; 30 U.S.C. § 35 (placer claims subject to same requirements for entry and patents as vein and lode claims). If no adverse claim is filed, the applicant is presumed to be entitled to a patent. See id. At this point, the claim is considered "perfected." See Shumway, 199 F.3d at 1100, 1101. When a claim is perfected, the failure to perform annual assessment work will not work a forfeiture of the claim. Rather, the locator's "possessory right, for all practical purposes of ownership, is as good as though secured by patent." Id. (quoting Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 317, 50 S.Ct. 103, 74 L.Ed. 445 (1930)).

Although a patent may be perfected, it will not be issued until there has been a determination that the claim is "valid." See Shumway, 199 F.3d at 1099; Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502, 506 (9th Cir.1997). To determine validity, the BLM must assess whether "there was a legitimate discovery of a valuable mineral deposit on the land which...

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