United States v. Langley

• Decision Date: 11 May 1984
• Docket Number: Civ. No. S-75-664 TJM.
• Citation: 587 F. Supp. 1258
• Parties: UNITED STATES of America, Plaintiff, v. Sylvia LANGLEY, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

587 F. Supp. 1258

UNITED STATES of America, Plaintiff, v. Sylvia LANGLEY, et al., Defendants.

Civ. No. S-75-664 TJM.

United States District Court, E.D. California.

May 11, 1984.

Donald B. Ayer, U.S. Atty., Louis Demas, Asst. U.S. Atty., Sacramento, Cal., for plaintiff.

Charles R. Gamble, in pro. per.

MEMORANDUM AND ORDER

MacBRIDE, District Judge.

BACKGROUND

Plaintiff, United States of America, brought this action in 1975 for ejectment of persons occupying the Last Stand Mining Claim, an unpatented mining claim located on public land in the Shasta-Trinity National Forest. In its Second Amended Complaint for Ejectment, filed May 18, 1978, the government alleged that the land at issue "is owned by plaintiff and is part of the Shasta-Trinity National Forest situated in Trinity County in the State and Eastern District of California...." The Complaint also alleged that "defendants, without right and in trespass, moved onto and have lived on and occupied said lands of the plaintiff, and a cabin or other structure located thereon."

The Last Stand Mining Claim was originally located by Max Barrett in 1954. Defendant Charles R. Gamble acquired the interest of the original defendants in this action, Sylvia Langley, Fredrick Langley, and Clark Thompson, on October 23, 1977. In his verified answer, filed October 28, 1981, Gamble raised the defense that he is the owner of the mining claim on the land in question, that the claim has been duly and regularly located and entered under the mining laws of the United States, that he has the exclusive right of possession and enjoyment of the surface within the lines of location, and that "the structures and buildings on defendant's mining claims on the land described in plaintiff's complaint are used in connection with prospecting, mining or processing operations and uses reasonably incident thereto...."

By Memorandum and Order, filed April 12, 1982, the court granted partial summary judgment for plaintiff, declaring that the land at issue was public land of the United States. On August 2, 1982, plaintiff moved for partial summary judgment, seeking an order directing defendant to vacate the land, and an injunction limiting his use of the land. In support thereof, plaintiff contended, 1) the defendant is not occupying the claim in good faith for mining purposes; 2) that defendant's residence on the land, and other uses which he is making of the land, are not "incident to mining" as required by the Surface Resources Act of 1955, 30 U.S.C. §§ 611 et seq.; and 3) that defendant has failed to comply with applicable Forest Service regulations governing use of the land, 36 CFR Part 228.

A hearing was held on September 14, 1982, and, by Order, filed on September 27, 1982, the court stayed the proceedings for six months to allow Gamble to exhaust his administrative remedies under 36 CFR Part 228, and to permit the United States Forest Service to exercise its primary jurisdiction thereunder.

During the pendency of the stay, the Forest Service repeatedly notified Gamble that his residence and operations were causing a significant disturbance of surface resources, and that pursuant to 36 CFR 228.4 he was required to submit a Plan of Operations to the District Ranger.¹ By letter dated December 27, 1982, the Forest Service notified Gamble of his noncompliance with 36 CFR 228.4, and set forth the following conditions:

1. You must immediately vacate National Forest land.

2. All structures, enclosures, garden fencing, water lines, garbage, litter and unserviceable equipment must be immediately removed from the National Forest.

3. The area you are presently occupying must be cleaned up and restored to as near natural condition as possible.

4. All access roads to the area you are occupying must be water-bared and closed to traffic.

The letter advised Gamble of his right to appeal these conditions and set January 27, 1983, as the deadline for appeal. These conditions were subsequently held in abeyance, and the deadline for appeal extended to February 15, 1983, and later to April 4, 1983.

On April 1, 1983, Gamble submitted a proposed "Plan of Operation" to the Forest Service. The Forest Service replied by letter—personally delivered to Gamble on May 2, 1983—requesting a substantial amount of supplementary information² and notifying Gamble that it was no longer holding in abeyance the four conditions mentioned above. The letter informed Gamble that until a Plan of Operations had been approved by the Forest Service, he was forbidden to "conduct any operation, reside on the mining claim, maintain personal property or maintain any structures without the express, written, prior permission of the Forest Service." No reply has yet been received from Gamble, nor has any appeal been taken.

On April 7, 1983, this court held a status conference, but Gamble failed to appear. On May 24, 1983, the government renewed its motion for summary judgment, requesting ejectment and injunctive relief. The motion was heard on June 21, 1983, and was then taken off calendar pending submission by plaintiff of a brief on the issue of whether plaintiff is entitled to the relief prayed for in its motion pursuant to its second amended complaint. This brief was filed on July 5, 1983, and defendant's responsive papers were filed on August 12, 1983. In his response, Gamble claimed to have obtained an approved Plan of Operations as of June 30, 1983. Gamble was requested by this court, on August 24, 1983, to submit a copy of such plan forthwith. No such copy having been received, this matter is deemed submitted.

DISCUSSION

Standard for Summary Judgment

Fed.R.Civ.P. 56(c) provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." All facts and inferences drawn from the foregoing materials must be viewed in the light most favorable to the non-moving party. Clipper Exxpress v. Rocky Mountain Motor Tarrif, 690 F.2d 1240, 1250 (9th Cir.1982), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983).

The relief sought by plaintiff in its motion for summary judgment amounts to ejectment and a prohibitory injunction. Plaintiff bears the burden of demonstrating the absence of any material issue of fact, and establishing its entitlement to the relief sought as a matter of law. Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). Once, however, this burden is met by presenting evidence which, if uncontradicted, would entitle plaintiff to a directed verdict at trial, the burden shifts to the defendant to "set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, should be entered against him. Fed.R.Civ.P. 56(e); Avila v. Travelers Ins. Co., 651 F.2d 658, 660 (9th Cir.1981).

Ejectment

Gamble came into possession of the land at issue in October 1977, having purchased and acquired a deed to the unpatented mining claim from the previous owner. See Deposition of Charles R. Gamble, May 17, 1982, at 7 hereinafter cited as "Deposition at ___". Under 30 U.S.C. § 26, the owner of a valid, unpatented mining claim on public land has the exclusive right of possession and enjoyment of the land.³ Accordingly, in order to succeed in its action for ejectment, plaintiff must establish that Gamble's claim is invalid, either because he has failed to make a mineral discovery, or because he is not occupying the land in good faith for mining purposes. See United States v. Noguiera, 403 F.2d 816, 823-25 (9th Cir.1968).

At this time, plaintiff is not challenging Gamble's claim based upon failure to make a discovery. It is, however, contesting the claim on the basis that Gamble is not occupying the land in good faith for mining purposes. Under these circumstances, there is no need for the court to withhold judgment pending an administrative determination of whether the claim is otherwise valid. United States v. Russell, 578 F.2d 806, 807-08 (9th Cir.1978); Noguiera, 403 F.2d at 824.

Plaintiff maintains, based upon parts of Gamble's deposition, that Gamble is using the mining claim primarily as a residence, and is engaged in agricultural and other pursuits unrelated to mining. Plaintiff cites portions of Gamble's deposition which indicate that he has no other residence, that he maintains a garden on the claim, that he has cleared land for an orchard, and that he has raised hogs and chickens on the land. See Deposition at 11-30 passim. While the cited portions of the deposition lend support to the plaintiff's position, other portions show that Gamble is engaged in mining activity on the claim, and has found some gold and sold it. See Deposition at 99-105 passim. As previously indicated, on a motion for summary judgment, the material presented and the inferences to be drawn therefrom are viewed in the light most favorable to the non-movant. Moreover, "a court should be wary of granting summary judgment when good faith is in question." Hotel and Restaurant Employees and Bartenders Int'l Union v. Rollison, 615 F.2d 788, 793 (9th Cir.1980); Baldini v. Local Union No. 1095, 581 F.2d 145, 151 (7th Cir.1978).

In United States v. Noguiera, 403 F.2d at 825, similar issues as to the good faith of the possessor of an unpatented mining claim were raised. The Ninth Circuit held that "the complaint presented questions of fact to be determined by the trial court as to the good or bad faith of the locator in filing the mining claim, and the good or bad faith of the possessor as to uses to which it was being put; and that these were evidentiary questions which the district court ... should have decided on a factual hearing." Accord, United States v. Haskins, 505 F.2d 246, 253 (9th Cir.1974).

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