US v. Doremus

• Decision Date: 21 April 1987
• Docket Number: No. MS 3025.,MS 3025.
• Citation: 658 F. Supp. 752
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Rory DOREMUS and David Doremus, Defendants/Appellants.
• Court: U.S. District Court — District of Idaho

658 F. Supp. 752

UNITED STATES of America, Plaintiff/Appellee, v. Rory DOREMUS and David Doremus, Defendants/Appellants.

No. MS 3025.

United States District Court, D. Idaho.

April 21, 1987.

Maurice O. Ellsworth, U.S. Atty., D. Idaho, Jeffery W. Ring, Asst. U.S. Atty., Boise, Idaho, for plaintiff/appellee.

Wilbur T. Nelson, Boise, Idaho, for defendants/appellants.

RYAN, District Judge.

I. FACTS

This is an appeal by Rory and David Doremus from their convictions after court trial before United States Magistrate Stephen M. Ayers. Both appellants were charged and convicted of violating 36 C.F.R. § 261.10(k) by exceeding the terms of an approved operating plan for a mining claim by keeping more than five trenches open as provided by the plan and for violating 36 C.F.R. § 261.9(a) by damaging trees and surface resources on National Forest land. Title 36 C.F.R. § 261.10(k) (1986) prohibits "violating any term or condition of a special-use authorization, contract or approved operating plan." Title 36 C.F.R. § 261.9(a) (1986) prohibits "damaging any natural feature or other property of the United States."

The appellants staked mining claims in the Red River Ranger District of the Nez Perce National Forest in the early 1970's. Since that time, the appellants have conducted mining operations on these claims under Forest Service approved operating plans. Operating plans are provided for pursuant to 36 C.F.R. §§ 228.1 through 228.63. Criminal charges for violation of these regulations is authorized by 16 U.S.C. § 551.

An operating plan for the year 1985 was signed by Appellant Rory Doremus and the District Ranger for the Red River Ranger District of the Nez Perce National Forest. The 1985 operating plan was drafted to incorporate changes from the 1984 operating plan requested by Appellant Rory Doremus as well as other provisions distinct from the 1984 operating plan. A portion of the plan provides in paragraph IV-A that no more than five trenches will be open at one time. This limitation was proposed by the appellants. Paragraph IV-A also limits the exploration to the clearcut area. Other paragraphs dealing with acceptable uses and practices with respect to timber include prohibition against use of live green trees for firewood and camp construction, and that all timber requirements be met by the use of small dead timber. The plan requires that all amendments be in writing. The District Ranger, or a designated representative authorized to approve amendments, is located approximately seven miles from the defendants' claims.

The trial court found that the appellants dug trenches and did excavation work outside the area of exploration and that on July 31, 1985, there were in excess of thirty trenches open, some of which were larger than the prescribed size. The trial court further found that the appellants had pushed over trees in excess of the authority allowed. Other activities in excess of the operating plan were noted by the trial court. On June 18, 1986, the trial court entered its memorandum opinion, concluding that both appellants were guilty as charged beyond a reasonable doubt.

II. ISSUES PRESENTED FOR APPEAL

In their reply brief, the appellants note the issues presented for appeal as:

1. Whether the regulations upon which conviction was predicated are void for vagueness, and hence violative of the Due Process clause of the Constitution.

2. Whether the evidence is sufficient to support the convictions.

Appellants' Reply Brief, filed March 24, 1987, at 2. Finally, throughout the briefing is a general discussion of what appellants contend is a conflict between the regulatory scheme and the statutory pronouncements. In essence, appellants contend that the proclamations of Congress demand deference to reasonable activities of miners and that if one looks to this for analysis, the activities of the appellants must be tested under a general reasonableness standard. Appellants argue that if their conduct was reasonable, despite the operating plan, then they cannot be convicted. Regulations which make that reasonable conduct illegal must fall in the shadow of the statutes. This "issue" will be addressed first and the understanding of the statutory and regulatory scheme set forth in that analysis will provide the basis for analysis of all issues raised on appeal.

III. STANDARD OF REVIEW

Actual findings of the trial court which have been expressed in findings of fact and conclusions of law are subject to a clearly erroneous standard of review. United States v. Bautista, 509 F.2d 675 (9th Cir. 1975). Questions of law are subject to de novo review. United States v. Nance, 666 F.2d 353 (9th Cir.1982); United States v. Moreno-Pulido, 695 F.2d 1141 (9th Cir. 1983). When mixed questions of fact and law are presented, the standard of review turns upon whether the court sees the factual matters or the legal matters as predominant. United States v. Owens, 789 F.2d 750 (9th Cir.1986).

IV. ANALYSIS

A. Statutory and Regulatory Scheme

The Surface Resources Act of 1955, 30 U.S.C. § 612, acknowledges a right of the United States to manage and dispose of the vegetative surface resources surrounding mining claims, but posits that any limitations of the surface of a mining claim by the United States shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto. United States v. Richardson, 599 F.2d 290 (9th Cir.1979). Under the same statute, miners have a right to remove timber when it is reasonably incident to the mining operation. The National Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21, and the Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1732, recognize the oftentimes competing, but equally important, policies of fostering mining exploration and development and protecting the environment. A balancing of these competing interests is required. United States v. Richardson, 599 F.2d 290 (9th Cir.1979); United States v. Weiss, 642 F.2d 296 (9th Cir.1981).

Title 36 C.F.R. § 261, et seq., has been promulgated by the Secretary of Agriculture under authority of the Organic Administration Act of June 4, 1897, specifically, 30 Stat. 35 and 36 (Oct. 23, 1962), 16 U.S.C. §§ 478 and 551. These provisions are part of the statutory scheme which covers the National Forests and which confers administration of the National Forests upon the Secretary of Agriculture. See 16 U.S.C. §§ 471-583i. Under Sections 478 and 551, the Secretary may make rules and regulations for the protection and preservation of the National Forests, and all persons entering upon that land must comply with the rules and regulations. United States v. Weiss, 642 F.2d 296 (9th Cir.1981); United States v. Richardson, 599 F.2d 290 (9th Cir.1979).

The Secretary of Agriculture is, then, given the directive to promulgate regulations to implement the policies recognized by Congress. While the Secretary of Agriculture does not have the authority to regulate mining per se, when mining activity disturbs National Forest land, regulation is appropriate. United States v. Goldfield Deep Mines Company of Nevada, 644 F.2d 1307 (9th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982). Regulatory schemes are necessary to provide some definition to the broad policy statements of Congress and establish a give-and-take system wherein the pristine state of the environment is compromised in favor of promoting mining concerns and at the same time reigning in unbridled upset of the environment and its ecological systems by miners. In other words, mining exploration and development is to be encouraged and promoted, but reasonable regulations are tolerated to protect the environment.

Laws and regulations must be sufficiently definite when regulating conduct, especially where providing criminal sanctions, so that a person of reasonable intelligence, exercising common understanding and practice, receives a fair and reasonable warning of that which is proscribed. United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Schwartzmiller v. Gardner, 752 F.2d 1341 (9th Cir.1984).

Title 30 U.S.C. § 612 suggests that activities reasonably incident to mining operations must be tolerated. It does not, however, provide in any specific terms what is or is not reasonably incident to mining operations. It is left to the Secretary to draft regulations within the framework dictated by Congress to balance the competing interests of the miners and the environment and to provide definition to what is and is not considered reasonable.

The regulations, in and of themselves and through the vehicles they employ, must make the laws of Congress fact specific so as to provide adequate notice of expected conduct and withstand a vagueness challenge. Necessarily, each mining operation and the environment which contains it will vary as to needs and circumstances. The drafters of the statutes and regulations cannot and need not foresee, delineate and proscribe conduct for each and every circumstance or set of circumstances. The court in United States v. Weiss, 642 F.2d 296 (9th Cir.1981), noted that each mining operation must be evaluated independently. The court recognizes that the nature of the activity prohibits statutory and regulatory drafters from writing with specificity. The mechanism approved by the Weiss court for detailing for each operation the conduct, tailored to each operation, deemed reasonable under the circumstances is the operating plan. See 36 C.F.R. § 228 (1986).

The purpose of the operating plan is to provide definition to the statutory and regulatory terms "reasonable" and "significant." The operating plan, then, becomes the definition of what is reasonable. The operating plan is the vehicle employed by the regulations to make the statutes and regulations...