US v. Burnett, Civ. No. 84-3111.
| Citation | 750 F. Supp. 1029 |
| Decision Date | 14 November 1990 |
| Docket Number | Civ. No. 84-3111. |
| Parties | UNITED STATES of America, Plaintiff, v. Lamar BURNETT, Defendant. |
| Court | U.S. District Court — District of Idaho |
Maurice O. Ellsworth, U.S. Atty., D. Idaho and Celeste K. Miller, Asst. U.S. Atty., Boise, Idaho, for plaintiff.
Claude Marcus, Marcus, Merrick & Montgomery, Boise, Idaho, for defendant.
The above-entitled action was brought by the government in September of 1984 to enjoin the defendant, Lamar Burnett, from trespassing on unpatented mining claims in the Nez Perce National Forest. The government also seeks to have certain buildings, structures, and personal property which the defendant purchased from the previous locator, removed from these mining claims. Both parties filed summary judgment motions. On September 11, 1990, this court heard oral arguments on these motions and took this matter under advisement.
This action involves certain unpatented mining claims, known as Gateway No. 1 and Gateway No. 2, located in the Nez Perce National Forest. These claims were initially located by J. A. Wavra in 1950. In 1965, Wavra deeded these claims to Ernest Patterson, who subsequently constructed several structures on the claims. On September 14, 1981, these claims were declared abandoned and void by the Forest Service because Patterson, in 1979, had failed to file a required yearly report entitled, "Evidence of Assessment Work/Notice of Intention to Hold Claim." See Affidavit of Tom Schmidt, filed March 6, 1987, Attachment B1. After Patterson died, Louise Regelin was appointed his Personal Representative on September 23, 1981.
On July 11, 1982, the unpatented mining claims, Gateway Nos. 1 and 2, were validly relocated and re-staked by Arliss and Helen Barnes and by Stanley and Betty Hagaman.1 On July 24, 1982, Defendant Burnett purchased the Barnes' interest in these claims. The Hagamans did not quitclaim their interest to Burnett, however, until November 15, 1984, subsequent to the filing of this suit.
On August 10, 1982, the Forest Service sent a letter to Regelin (Patterson's Personal Representative) and advised Regelin that Patterson's claims were null and void, and that the buildings on these claims would become the property of the United States if they were not removed by the successor to the Patterson claims. See Affidavit of Tom Schmidt, filed March 6, 1987, Attachment F. On August 11, 1982, Regelin put the buildings and other personal property located on the claims up for sale. Id., Attachment H. The defendant's bid was accepted and a quitclaim deed was issued to him. Prior to this bid being accepted, the Forest Service sent another letter dated August 17, 1982, to Regelin, again informing her that the personal property and buildings would have to be removed from the claims. Id., Attachment G.
On September 14, 1982, Regelin sent a letter to the Forest Service advising that Burnett had purchased the buildings and structures and would be removing them within the set deadlines. Id., Attachment K. On March 15, 1983, the Forest Service sent a letter to Defendant Burnett reminding him of the July 1st deadline for removing the personal property. Id., Attachment M. In addition, the letter advised him that if he intended to use any of the structures for mining purposes, he would have to submit a "plan of operations" indicating his desired use. On June 20, 1983, Burnett responded by letter, indicating that he had no intention of tearing down the buildings, nor did he have any intent of filing a plan of operations. The Forest Service, by letter dated July 6, 1983, re-advised Burnett that he would have ten days to remove the buildings and personal property, and at the end of those ten days the Forest Service would impound and remove whatever was left on the property. Id., Attachment O. On July 12, 1984, counsel for the defendant sent a letter to the Forest Service restating the defendant's position. Id., Attachment P.
On July 10, 1984, the defendant filed amended locations for these claims, and in 1983, 1984, 1985, and 1986 he filed the required "proofs of work done"; however, during this time, he never filed a plan of operations. On October 3, 1984, the government filed this Complaint, to which the defendant answered on October 22, 1984.
On April 13, 1987, the court issued an order holding the case in abeyance pending final administrative action on the "plan of operations" that the defendant had agreed to file with the Forest Service. The court, in September of 1987, terminated the case without prejudice. The Forest Service subsequently rejected defendant's "Plan of Operations." The defendant then exhausted all his administrative appeal remedies, but to no avail. In February of 1988, the defendant filed an Amended Answer and Motion for Summary Judgment. The case was then reopened on March 14, 1988.
In plaintiff's memorandum in support of the Motion for Summary Judgment, the plaintiff argues that it is entitled to judgment as a matter of law. In its Complaint, the government has sought, (1) a permanent injunction enjoining the defendant from further trespass; (2) an order requiring the defendant to remove the cabins and structures within 15 days from the date of the order; (3) authorization to go in and remove the cabins, structures and other personal property, and in the event the defendant does not remove such from the claims, that the defendant be charged the costs of such removal; and (4) its disbursements and costs.
In support of its requested relief, the government makes basically two arguments. In its first argument, the government does not contest the validity of the relocated mining claims that Burnett purchased from the Barnes' and the Hagamans. The government argues that the structures and personal property originally located on the claims by Patterson constitute a trespass because the defendant has no authorization from the Forest Service to keep the structures and personal property on the claims. Memorandum in Support of Motion for Summary Judgment, filed March 6, 1987, at 5; Reply Brief in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment, filed April 7, 1989, at 5. In addition, the government argues that once the Forest Service declared the Patterson mining claims to be abandoned and void, that the possessory interest in the buildings and personal property became vested in the Forest Service, and that pursuant to those rights, the Forest Service then authorized Patterson's Personal Representative to sell the structures and personal property, under the condition that they would all be removed.
Upon review of all the correspondence between the parties, it appears that Burnett was told from the outset that the structures and personal property would have to be removed. There is nothing in the written record to indicate that the Forest Service told Burnett that he could keep the structures on the claims. He clearly was put on notice of the Forest Service's intent. Based upon the foregoing, the court finds that Burnett purchased from the Patterson estate, only the right to remove the structures and the personal property, and not the right to possess them on the claims.
Stated differently, when the Barnes' and the Hagamans validly relocated the mining claims, they did not get a possessory interest in the structures and personal property. What they received was an interest in the mining claims, less the structures and personal property. When Burnett subsequently purchased or received their interests in the claims, he succeeded to just the mining claims as well, with no possessory interest.
The Ninth Circuit case law seems to be consistent with this view. See Brothers v. United States, 594 F.2d 740 (9th Cir.1979). In Brothers, the plaintiffs brought an inverse condemnation suit against the Forest Service, claiming that the Forest Service had wrongfully taken a mining claim and two cabins located on the claim. The plaintiffs in Brothers argued that once they relocated the abandoned mining claim, the cabins, as well as the land, vested in them. They argued this, despite conceding the fact that the mining claims and buildings reverted to the United States when abandoned by the previous locator. Id. at 740-41. The Ninth Circuit specifically disagreed and pointed out that the plaintiffs had notice that the cabins had been abandoned to the government and that their predecessor was only granted permission to remove the cabins. Based upon this, the court found that the plaintiffs did not have any rights or interest in the cabins. Id. at 741-42. Thus, the court finds the Brothers case controlling.
In its second argument, the government argues that even if Defendant Burnett has a possessory interest in the cabins and other structures, he does not have Forest Service authorization to keep them on the unpatented mining claims. Memorandum in Support of Motion for Summary Judgment, filed March 6, 1987, at 7-9; Reply Brief in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment, filed April 7, 1989, at 6-7. Even though the court finds that the government's first argument is sufficient grounds to grant plaintiff's summary judgment motion, the court will address this second argument.
The government argues that 36 C.F.R., part 2282, requires mining claimants to submit a "plan of operations," which must be approved by the Forest Service, before conducting any work in connection with prospecting, exploration or mineral development and processing.3 In addition, the government argues that 36 C.F.R. 261.10(a)4 also prohibits the construction or maintenance of a structure on National Forest land without a special use authorization or an approved...
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