Uecker v. U.S. Forest Serv.

• Decision Date: 28 February 2019
• Docket Number: Civil Action No. 17-cv-02879-RM-KLM
• Parties: JASON UECKER, and QUENTIN GOOD, Plaintiffs, v. UNITED STATES FOREST SERVICE, Department of Agriculture, and JOSHUA VOORHIS, individually, and in his official capacity as District Ranger, South Park Ranger District, Defendants.
• Court: U.S. District Court — District of Colorado

JASON UECKER, and QUENTIN GOOD, Plaintiffs, v. UNITED STATES FOREST SERVICE, Department of Agriculture,and JOSHUA VOORHIS, individually, and in his official capacity as District Ranger,South Park Ranger District, Defendants.

Civil Action No. 17-cv-02879-RM-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 28, 2019

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on the Motion to Dismiss [#18],¹ filed by Defendants United States Forest Service, Department of Agriculture² ("Forest Service") and Joshua Voorhis ("Voorhis") in his official capacity; and on the Motion to Dismiss [#19], filed by Defendant Voorhis in his individual capacity (collectively, the "Motions"). Plaintiffs, whoproceed as pro se litigants,³ filed Responses [#21, #26, #27]⁴ in opposition to the Motions [#18, #19], and Defendants filed Replies [#24, #28, #29] in further support of the Motions.⁵ Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motions have been referred to the undersigned for a recommendation regarding disposition. See [#23]. The Court has reviewed the Motions, the Responses, the Replies, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motions [#18, #19] be GRANTED.

I. Background⁶

For many years, Plaintiffs have worked two unpatented mining claims located on United States National Forest property in Teller County, Colorado. Although the precise relationship between the two claims (named "Blue on Black" and "Dreamtime") is unclear, they appear, at a minimum, to be located next to one another and worked by Plaintiffs from the same camp site.

Since 1998, Plaintiff Jason Uecker ("Uecker") has worked the Blue on Black claim. Pls.' Ex. 6, June 17, 2004 Decision Notice [#27-6] at 2. In order to work claims on National Forest property, a plan of operations must be submitted and approved by the local District Ranger. See 36 C.F.R. § 228.5. Plaintiff Uecker initially worked his claim without such a plan in place. Pls.' Ex. 5, Surface Use Determination [#27-5] at 3. Three proposed plans that he submitted in August 1999 and in 2002 were not approved, but he submitted a fourth plan in April 2003 (which was later modified in July 2003). Id. In early June 2003, South Park District Ranger Sara Mayben ("Mayben") requested that a Surface Use Determination study be conducted for the Blue on Black claim to help her decide whether Plaintiff Uecker's latest proposed plan should be approved. Id. On December 4, 2003, the Surface Use Determination report was completed, ultimately stating that his proposed plan was"reasonable" and recommending that the plan "should be approved if his proposal meets all of the other regulatory requirements." Id. at 4. Plaintiffs allege that a similar Surface Use Determination was issued for the Dreamtime mining claim owned by Plaintiff Quentin Good ("Good"). Compl. [#1] at 6.

On June 17, 2004, District Ranger Mayben conditionally approved Plaintiff Uecker's proposed plan, stating in part:

I will approve the plan of operations with specific supplemental modifications outlined in this Decision Notice for a period of five years through December 31, 2009. At that time if the operator requests, the Forest Service will perform a [National Environmental Policy Act ("NEPA")] compliance review and may extend the plan of operations for an additional five years if the operation is consistent with NEPA requirements at that time, and is within the scope of this [environmental assessment] and decision. At the end of 10 years, the operator will be required to submit a new plan of operations for a full scale NEPA analysis by the Forest Service.

Pls.' Ex. 6 [#27-6] at 6. At the end of the Decision Notice, information was provided which explained how any part of District Ranger Mayben's determination could be administratively appealed within forty-five days.⁷ Id. Thus, Plaintiff Uecker's plan of operations was thereafter approved through December 31, 2009, with a possible extension through December 31, 2014. Id. Plaintiffs allege that a similar Decision Notice was issued for Plaintiff Good's Dreamtime mining claim, approving his plan of operations. Compl. [#1] at 9.

After Plaintiffs' plans of operations expired on December 31, 2009, the Forest Service officially determined that Plaintiffs' mining claims were no longer in compliance with federal regulations, although Plaintiffs alleged that they "repeatedly asked" for an extensionof their previously approved plans and/or for approval of new mining plans. Id. at 10. Plaintiffs assert that the adverse decisions on their appeals from the denial of their extensions and/or new plans were not timely issued, thus making those decisions invalid. Id. at 10-11.

On October 2, 2015, a letter was sent to Plaintiff Good by Defendant Joshua Voorhis ("Voorhis"), the new District Ranger, telling him that he must remove all of his property from the Dreamtime site. Id. at 14. This letter stated:

A letter was sent to you on October 31, 2013, from the Acting Forest Supervisor, upholding District Ranger Sexton's Administrative Decision dated May 2, 2013. This letter instructed you to cease and desist all mining activities until such time as you could comply with the requirements set forth in 36 CFR 228, subpart A, regulations, which require you to submit a Plan of Operations to the U.S. Forest Service for review and approval. As of this date, the South Park Ranger District has not received your Plan of Operations.

I am hereby notifying you that your operations on National Forest System lands without an approved Plan of Operations are unnecessarily and unreasonably causing injury, loss and damage to surface resources. The activities of concern are:

• Use of mechanized equipment;

• The wire and t-post perimeter fence and metal gate, which restrict access by the general public to National Forest System lands;

• Cutting green trees;

• On-site structures such as the perimeter fence (wire and t-post), trailer, and signs;

• The open excavations;

• Trash and assorted personal property scattered throughout the site.

Therefore, you are in non-compliance with the requirements of 36 CFR 228.4(a) (plan of operations requirements), 228.5(a) (operations shall be conducted in accordance with an approved plan of operations), and 261.10(p) (operating on NFS lands without an approved plan of operations.)

Until you have complied with the regulations in 36 CFR 228 by obtaining an approved Plan of Operations for your mining-related activities on your Dreamtime Unpatented Mining Claim, you must Cease and Desist all surface disturbing activities immediately.

I am enclosing a Plan of Operations form for you to fill out. Please note that filling out the enclosed Plan of Operations does not alleviate your obligation to cease and desist all surface disturbing activities. If you plan on lawfully conducting mining-related activities on your Dreamtime unpatented mining claim, you must fill out this Plan of Operations. Until then, you may not resume your operations.

Please return the Plan of Operations to me by November 1, 2015. Once I have received it, your proposal will be analyzed by the district specialists and your bond amount will be reviewed in order to determine whether any further bonding will be needed to cover your current and proposed activities. Of course, the sooner your completed Plan of Operations is received, the sooner this process may be started, and the sooner your operations may resume.

If the South Park Ranger District does not receive your Plan of Operations by November 1, 2015, you will face charges under 36 CFR 261 for operating on NFS lands without an approved plan of operations.

Regardless of your submission or non-submission of your Plan of Operations, the Forest Service will require to you to remove all structures (i.e. trailer, gate, fence - including wire and t-posts, platform/stage, sign), mechanized equipment (i.e. backhoe, front end loader, etc.), and personal property by November 9, 2015.

If you do not remove the trailer, fence, gate, sign, mechanized equipment, and all personal property, the Forest Service will proceed with impoundment procedures, which will result in additional costs to you.

Defs.' Ex. 1, Oct. 2, 2015 Letter from Voorhis to Good [#18-1].

On June 6, 2017, a letter was sent to Plaintiff Uecker by Defendant Voorhis, stating: "that if you did not vacate the site and remove all your personal property, structures, and improvements on the Blue on Black claim by July 6, 2017, your equipment and inanimate property would be in trespass and subject to impoundment." Compl. [#1] at 14.

On September 27, 2017, Defendant Voorhis "led a team of Forest Service employees and private contractors as they removed valuable and necessary mining equipment" and other property (including signs and papers marking their mining claims)from the Blue on Black and Dreamtime mining claims worked by Plaintiffs. See Compl. [#1] at 3-5, 7; see also Ex. A to Compl. [#1-1]; Ex. B to Compl. [#1-2]. Plaintiffs were told that the removed property was being impounded through an administrative action rather than through a law enforcement action, although a law enforcement officer was on-site to supervise. Compl. [#1] at 5. Plaintiffs assert that the impoundment occurred without a hearing, court order, or the ability to appeal the decision to impound. Id. at 7-8. They further assert that they are authorized to operate their mining claims based on (1) the prior Surface Use Determinations,⁸ (2) approval of their old plans of operations by a prior Forest Service District Ranger,⁹ and (3) a Reclamation Permit from the Colorado Division of Reclamation, Mining and Safety (an agency of the State of Colorado) which "contained all the information required by 36 CFR 228, subpart A."¹⁰ Id. at 6-7, 9, 11-12.

Plaintiff Good alleges...