United States v. Godfrey

• Citation: 112 F.Supp.3d 1097
• Decision Date: 04 June 2015
• Docket Number: No. 2:14–cr–00323 JAM.,2:14–cr–00323 JAM.
• Parties: The UNITED STATES of America, Plaintiff–Appellee, v. John E. GODFREY, Defendant–Appellant.
• Court: U.S. District Court — Eastern District of California

112 F.Supp.3d 1097

The UNITED STATES of America, Plaintiff–Appellee,

v.John E. GODFREY, Defendant–Appellant.

No. 2:14–cr–00323 JAM.

United States District Court, E.D. California.

Signed June 4, 2015.

Peter Michael Mularczyk, U.S. Attorney's Office, Sacramento, CA, for Plaintiff–Appellee.

Linda C. Harter, Rachelle Barbour, Federal Public Defender's Office, Sacramento, CA, for Defendant–Appellant.

ORDER AFFIRMING IN PART AND REVERSING IN PART DEFENDANT'S CONVICTIONS

JOHN A. MENDEZ, District Judge.

This matter is before the Court on Defendant John Godfrey's ("Defendant") appeal from his conviction on three counts following a trial before Magistrate Judge Kendall Newman (Doc. # 36). With leave of the Court, The New 49'ers Legal Fund ("Amicus") filed an amicus curiae brief (Doc. # 38). Oral argument was held before the Court on June 2, 2015. For the following reasons, Defendant's conviction is affirmed in part, and reversed in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from Defendant's gold mining operation on the Lucky Bob Mining Claim in the Tahoe National Forest. Doc. # 32, Reporter's Transcript, Day 1 ("RT1") at 1–224. The Lucky Bob claim is a placer claim, which means that gold was found within gravels or sedimentary deposits, rather than in hard rock or quartz. RT1 at 1–42. Because the Lucky Bob claim is unpatented, the United States Forest Service retains jurisdiction to manage the non-mineral surface resources on the land. RT1 at 1–42. During the relevant time period, Defendant had received permission from the holder of the Lucky Bob claim to mine the claim. RT1 at 1–224. As detailed below, Defendant took a number of actions to improve land and trails on the claim. RT1 at 1–50–1–54. Defendant also installed a non-motorized hand sluice, which was described at trial as follows: "A sluice box is an elongated piece of metal with sides and with little partitions in the lower half of the box that you run water through. And you take material that's had the rocks and stones removed from it, and put it in that box and let water flow over it and wash out everything but hopefully heavy metals and gold." RT1 at 1–214 (testimony of defense witness, Larry Latta). Defendant's convictions arise from his failure to comply with various regulations—promulgated by the United States Secretary of Agriculture and enforced by the United States Forest Service—in mining the Lucky Bob claim.

On August 21, 2014, the Government filed a five-count superseding information, which charged Defendant with five federal Class B misdemeanor counts for allegedly conducting various unauthorized activities on National Forest lands and for causing damage to surface resources, in violation of 16 U.S.C. § 551 and 36 C.F.R. § 261.1 et seq. Doc. # 12. In Count One, Defendant was charged with unauthorized cutting and damaging of any timber, tree, and forest product, in violation of 36 C.F.R. § 261.6(a). Id. In Count Two, Defendant was charged with causing timber, trees, slash, brush, and grass to burn without a permit, in violation of 36 C.F.R. § 261.5(c). Id. In Count Three, Defendant was charged with damaging any natural feature or property of the United States, in violation of 36 C.F.R. § 261.9(a). Id. In Count Four, Defendant was charged with unauthorized trail and significant surface disturbance on National Forest System land, in violation of 36 C.F.R. § 261.10(a). Id. Finally, in Count Five, Defendant was charged with placing in or near a creek any substance which may pollute, in violation of 36 C.F.R. § 261.11(c). Id.

On September 9–10, 2014, a two-day bench trial was held before Magistrate Judge Newman. Doc. # 18; Doc. # 21. Acting as the finder of fact, Magistrate Judge Newman found Defendant not guilty of Counts One and Two, because Defendant's actions were mining-related. Doc. # 33, Reporter's Transcript, Day 2 ("RT2") at 2–46. However, the Magistrate Judge found Defendant guilty of Counts Three, Four, and Five, noting it was "not possible to look at the photographs in this case and find that there was not significant resource disturbance in this case, and that does include the cutting of trees; the removing of bushes and brush; the burning; the breaking up of boulders, and using chains and using a drill to do so; the use of chemicals, whether non-toxic or otherwise; the use of a hose, even if only for a few times, but then to use a hydraulic method; the damming of the water." RT2 at 2–49.

On November 5, 2014, Defendant was sentenced to five years of probation, which may terminate in three years if he complies with all terms of probation, including the payment of restitution. Doc. # 27. Defendant was also ordered to complete 200 hours of unpaid community service, pay $7,500 in restitution, and pay a $30 special assessment. Id.

Pursuant to 18 U.S.C. § 3402, Federal Rule of Criminal Procedure 58(g)(2)(B), and Local Rule 422, Defendant now appeals his convictions on Counts Three, Four, and Five.

II. OPINION

A. Legal Standard

On appeal, questions of statutory construction and statutory interpretation are reviewed de novo. United States v. Montes–Ruiz, 745 F.3d 1286, 1289 (9th Cir.2014). As Defendant timely moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, the Court's review of the denial of the motion is de novo. United States v. French, 748 F.3d 922, 935 (9th Cir.)cert. denied, ––– U.S. ––––, 135 S.Ct. 384, 190 L.Ed.2d 271 (2014). As with any sufficiency of evidence challenge, the Court must consider the evidence presented at trial in the light most favorable to the Government. Id. Thus, the ultimate inquiry for the Court is "whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010).

B. Statutory and Regulatory Framework

The United States Mining Laws Act of 1872 reserved to "locators of all mining locations" the "exclusive right of possession and enjoyment of all the surface included within the lines of their locations." 30 U.S.C. § 26. This "exclusive right" was modified and limited by the Surface Resources and Multiple Use Act of 1955, which reserved to the United States the right "to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof." 30 U.S.C. § 612(b). However, regulations passed pursuant to the Surface Resources and Multiple Use Act of 1955 may not "endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto." Id.

In accordance with 30 U.S.C. § 612(b) —and pursuant to the statutory authority granted in 16 U.S.C. § 551 —the Secretary of Agriculture promulgated a series of regulations that prohibit certain activities within the National Forest System. 36 C.F.R. § 261.1 et seq. These regulations are qualified by the limitation that "nothing in this part shall preclude activities as authorized by the U.S. Mining Laws Act of 1872 as amended." 36 C.F.R. § 261.1(b). Consistent with this language, the Ninth Circuit has upheld the Secretary of Agriculture's authority to regulate mining operations in the Natural Forest System, provided that such operations are not "prohibited nor so unreasonably circumscribed as to amount to a prohibition." United States v. Weiss, 642 F.2d 296, 299 (9th Cir.1981). As relevant in this case, the Ninth Circuit has held that the Forest Service may require prospective miners to submit either a notice of intent or a plan of operations for approval under 36 C.F.R. § 228.4, provided that these requirements apply only to operations "which might cause significant disturbance of surface resources." 36 C.F.R. § 228.4(a) ; United States v. Doremus, 888 F.2d 630, 632 (9th Cir.1989).

As set forth in 36 C.F.R. § 228.4, "a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources." 36 C.F.R. § 228.4(a). "Operations" is defined as including "[a]ll functions, work, and activities in connection with prospecting, exploration, development, mining or processing of mineral resources and all uses reasonably incident thereto[.]" 36 C.F.R. § 228.3(a). The regulations provide that "[s]uch notice of intent shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted." 36 C.F.R. § 228.4(a). The regulations further provide that a notice of intent to operate is not required for certain activities, although these exceptions incorporate the central standard of "significant surface resource disturbance." 36 C.F.R. § 228.4(a)(1). For example, a notice of intent to operate is not required for "[p]rospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study which generally might include searching for and occasionally removing small mineral samples or specimens, gold panning, metal detecting, non-motorized hand sluicing, using battery operated dry washers, and collecting of mineral specimens using hand tools[.]" 36 C.F.R. § 228.4(a)(1)(ii). Similarly, a notice of intent to operate is not required for "[o]perations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise might cause a significant disturbance of surface resources[.]" 36 C.F.R. 228.4(a)(1)(vi). Thus, even for these enumerated "exceptions," the central inquiry remains whether operations might cause significant disturbance of surface resources.

As noted above, Part 261 sets forth a number of activities which are prohibited within the National Forest System, violations of which form the bases of the criminal charges against Defendant. 36 C.F.R. § 261.1 specifically provides that "Forest Officers may permit in the ......