Recently PLP assisted Steve Hicks in winning a lawsuit from the U.S. Forest Service, by doing so we were able to get this US vs Craig case and the Hicks case, posted just below this post, both published. These cases are very important to the mining community in as much as they state: the miners do not need special use permits and are exempt. You should print the Hicks Case, the Craig Case, the McClure case and the Lex, Wagner case, all posted on this site, and carry them with you and understand them to protect yourself.
Jerry and Clark
Only the Westlaw citation is currently available.
United States District Court, D. Montana,
UNITED STATES of America, Plaintiff,
Lloyd CRAIG, Defendant.
April 16, 1984.
JAMES F. BATTIN, Chief Judge.
*1 Pursuant to the Memorandum Opinion this day filed in the above-captioned case,
IT IS ORDERED that the U.S. Magistrate's judgment finding appellant guilty of violating 16 U.S.C. § 551 and 36 C.F.R. §§ 261.10(a), 261.12(d) (1980) is reversed and the complaints charging appellant with such offenses are dismissed.
The Clerk is directed forthwith to notify counsel for the respective parties of the making of this order.
The above-captioned case is before this Court on appeal from a U.S. Magistrate's judgment finding defendant, Lloyd Craig, guilty of violating 16 U.S.C. § 551 and, more specifically, 36 C.F.R. §§ 261.10(a), 261.12(d) (1980).
FACTS AND ISSUES
On July 16, 1981, appellant Craig was charged with three offenses. The criminal complaints alleged that he had plowed snow on a National Forest System road without a permit in violation of 36 C.F.R. § 261.10(a) (1980), that he damaged the road by such plowing in violation of 26 C.F.R. § 261.12(d) (1980), and that he placed a private lock on a forestry gate on a National Forest System road without a permit in violation of 36 C.F.R. § 261.12(a) (1980). The alleged violations occurred on Birch Creek Road No. 139 in the Helena National Forest.
During February and March of 1981 appellant had numerous conferences and telephone conversations with Forest Service officials of the Helena National Forest concerning a plan of operations for mining claims owned by Gipsy Creek Mining Company in an area adjacent to the Birch Creek Forest Service road. Appellant filed a plan of operations and reclamation, together with various maps, plats and diagrams, as requested by Forest Service officials. The plan was received by the District Ranger on March 10, 1981. A letter from the District Ranger dated March 17 requested additional information from appellant and informed him that a permit was being prepared for commercial hauling and snow plowing.
On April 1, 1981, a second letter from the District Ranger stated that appellant's plan of operations had been reviewed and would be approved with seven additional conditions. It further stated that an approved copy of the plan would be sent to appellant when a $2000 road use permit bond was posted. Appellant applied for the bond on April 6, 1981, and on May 15, 1981, the bond was mailed to the Forest Service. In the meantime, however, appellant allegedly plowed snow on Birch Creek Road which caused damage to the road and led to the charges against him.
The parties consented to a hearing before a U.S. Magistrate pursuant to 28 U.S.C. § 636(c)(1), and a non-jury trial was held before Magistrate Leo J. Kottas on July 28, 1981. Magistrate Kottas entered judgment on February 5, 1982, finding appellant guilty of both plowing snow without a permit and damaging a National Forest System road. Appellant was fined $350 and $425, respectively, for the two offenses. Appellant was found not guilty of placing a private lock on a National Forest System gate.
*2 Appellant presents three issues for review by this Court. First, whether 36 C.F.R., Part 261, general prohibitions relating to the use of national forests, is applicable to persons exercising statutory rights under the U.S. mining laws in searching for, prospecting, locating and developing mineral resources on public lands under the jurisdiction of the U.S. Forest Service. Second, whether a Forest Service employee, a non-lawyer, may prepare and prosecute criminal charges before a U.S. Magistrate. Third, whether the evidence adduced at trial is sufficient to support appellant's conviction.
This appeal is properly before the Court under 18 U.S.C. § 3402. Rules of Procedure for the Trial of Misdemeanors Before U.S. Magistrates, Rule 7(e), promulgated by the United States Supreme Court pursuant to 18 U.S.C. § 3402, provides that on appeal “[t]he defendant shall not be entitled to a trial de novo by a judge of the district court. The scope of appeal shall be the same as on an appeal from a judgment of a district court to a court of appeals. “Thus, the U.S. Magistrate's decision is reversible only if it is clearly erroneous or contrary to law. United States v. Ramirez, 555 F.Supp. 736, 739 (E.D.Cal.1983); United States v. Li, 510 F.Supp. 276, 277 (D.Haw.1981); United States v. Williams, 220 F.Supp. 556, 557 (N.D.Cal.1963).
I. Applicable Regulation.
The statutory right to mine on public land is a long-standing right. The mining laws of 1872 encourage economic development of minerals and declares that “all valuable mineral deposits in land belonging to the United States ... shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase ... under regulations prescribed by law....”30 U.S.C. § 22. Appellant argues that he was convicted of charges stemming from activities done as the owner of mining claims legally filed and recorded under the U.S. mining laws of 1872 (30 U.S. §§ 21-54). Appellant further argues that the only regulations which apply to his actions are found in 36 C.F.R., Part 252.
Appellant was convicted under 16 U.S.C. § 551 and 36 C.F.R. §§ 261.10(a), 261.12(d). The Organic Administration Act of 1897, 16 U.S.C. § 551, gives the Secretary of Agriculture the authority to make rules and regulations governing the occupancy and use of national forests and preserving such forests from destruction. The statute also makes any violation of promulgated rules and regulations punishable by a fine of not more than $500 or imprisonment for not more than six months, or both. The Secretary's authority to govern the use of national forests, however, is limited by 16 U.S.C. § 478: “[n]or shall anything herein prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating and developing the mineral resources thereof. “Even though the Secretary cannot prohibit mining on National Forest System land, miners are subject to “the rules and regulations covering such national forests.”16 U.S.C. § 478.
*3 The use of our national forests involves important and competing interests. These interests, however, must co-exist. Since 1897, the Secretary of Agriculture has had authority under 16 U.S.C. §§ 478 and 551 to promulgate regulations concerning the methods of prospecting and mining in national forests. It was not until 1974 that such regulations were adopted. A precarious balance was struck between the legitimate needs of a miner to enter and use national forest land for mining purposes and the need to protect the forests from harmful effects resulting from mining activities. As stated, “[i]t is the purpose of these regulations to set forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the U.S. mining laws (30 U.S.C. 21-54), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources.”36 C.F.R. § 252.1.
There is no doubt that the regulations found in 36 C.F.R., Part 252 govern mining activities of miners. And, there is no doubt that such regulations have the force and effect of law. United States v. Weiss, 642 F.2d 296, 298 (9th Cir.1981). The real question is whether the regulations listed in 36 C.F.R., Part 252 are the only regulations which apply to “operations” conducted under the U.S. mining laws of 1872. Appellee argues that any person, including a miner or a prospector, may be issued a citation for acts or omissions listed in 35 C.F.R., Part 261, unless the acts or omissions are authorized by an approved operating plan or a special use permit.
B. Approved Operating Plan.
This Court cannot agree that a miner may be issued a citation under 36 C.F.R., Part 261 if his or her submitted plan of operations has not yet been approved by a District Ranger. A proposed plan of operations is required to be filed with the Forest Service “[i]f the District Ranger determines that such operations will likely cause significant disturbance of surface resources....”36 C.F.R. § 252.4(a). The plan must include existing and/or proposed roads or access routes to be used in connection with the operations. 36 C.F.R. § 252.4(c)(2).“Proposals for use of such access as part of a plan of operations shall include a description of the type and standard of the proposed means of access, a map showing the proposed route of access, and a description of the means of transportation to be used.”36 C.F.R. § 252.12. The Forest Service had been in contact with appellant for several months during the spring of 1981 and had required appellant to file a proposed plan of operations.
The language of 36 C.F.R., Part 252 indicates that the Forest Service intended Part 252 to apply to all operations conducted under the U.S. mining laws of 1872. 36 C.F.R. § 252.2. It is undisputed that appellant had legally filed and recorded mining claims under the U.S. Mining Laws of 1872. The only question, then, is whether appellant was conducting “operations.”
*4 “Operations” are defined as “[a]ll functions, work and activities in connection with prospecting, exploration, development, mining or processing of mineral resources and all uses reasonably incident thereto, including roads and other means of access on lands subject to the regulations in this part, regardless of whether said operations take place on or off mining claims.”36 C.F.R. § 252.3(a). Thus, activities done in connection with prospecting, exploration and development of mineral resources are covered by Part 252 and those activities include use of roads on or off mining claims.
There is no requirement that Part 252 applies only to operations conducted after an operating plan has been approved. The language of Part 252 supports a conclusion that even though appellant's proposed plan of operations had not been approved, appellant had filed such a plan and was conducting “operations” under the U.S. mining laws of 1872. Recognizing that miners have a statutory right to explore and develop mineral resources, the Forest Service drafted its regulation in parts, separating mineral resource regulation from permissive use regulation. Any violation by appellant before his proposed plan of operations was finally approved should have been charged under 36 C.F.R., Part 252, the only part which applies to minerals and mineral resources. In fact, § 252.12 prohibits the use of access until an operator has received approval of an operating plan in writing. 36 C.F.R. § 252.12.
C. Special Use Permits.
This Court cannot agree that a miner who has submitted a plan of operations must also apply for special use permits for activities already covered by the operating plan. Mining has been accorded greater rights than those given for permissive uses and special use permits such as those required by 36 C.F.R., Part 261 are not required for mining-related operations such as exploration and development. Regulation of such operations is covered by Part 252.
An act or omission listed in 36 C.P.R., Part .261 not authorized by a permit issued under 36 C.P.R. § 261.1a, or otherwise authorized, is punishable as provided in 16 U.S.C. § 551. Permits are generally in the form of special use permits issued under 36 C.F .R., Part 251. 36 C.F.R. § 251.50(a) provides that “[a]ll use of National Forest System land, ... except those provided for in the regulations governing ... minerals and mineral materials (§ 252), ... are ‘special uses' and must be authorized....” A system other than use permits has been established for minerals and mineral materials. That system of regulation is found in 36 C.F.R., Part 252. When the statute and the regulations give miners a statutory right to go upon and use the open public domain for purposes of mineral exploration and development, Forest Service officials may not unreasonably restrict that right by applying general Forest Service regulations and a permit system.
Testimony at appellant's trial before the U.S. Magistrate indicated that the District Ranger stated in a letter dated April 1, 1981, that appellant's plan of operations had been reviewed and would be approved with seven additional conditions. The District Ranger also told the appellant that an approved copy of the plan would be sent to appellant when a $2000 road use permit bond was posted. However, mining activities, including use of roads for access on or off mining claims, are covered by regulations found in 36 C.F.R., Part 252. See36 C.F.R. § 252.3(a). The only bonds required under Part 252 are bonds for reclamation, 36 C.F.R. § 252.13, not bonds for special use authorization under 36 C.F.R. § 251.56(a).
*5 The United States Magistrate concluded “[t]hat the forestry regulations under which Defendant has been, charged apply to miners generally and to ... Lloyd Craig Defendant as to mining operations and building, and maintaining Forestry System Roads or trails leading to miners claims and use thereof. “This Court has carefully considered the United States Magistrate's conclusion of law and cannot agree that 36 C.F.R., Part 261 applies to appellant, a miner acting under the United States mining laws of 1872 who submitted a proposed plan of operations under 36 C.F.R., Part 252 in accordance with Forest Service determinations. Any violation by a miner of Forest Service regulations should be charged under 36 C.F.R ., Part 252.
The complaints under which defendant was charged state that appellant plowed snow without a permit in violation of 36 C.F.R. § 261.10(a) and that he damaged the Birch Creek Road in violation of 36 C.F.R. § 261.12(d). Since this Court found that appellant was not required to have a special use permit for activities done in connection with mining operations as defined in 36 C.F.R., Part 252, the complaints do not state facts constituting offenses for which appellant may be charged and they must therefore be dismissed. See Fed.R.Crim.P. 3. The remaining two issues presented for appeal need not be decided at this time.
The Court will issue an order in conformity with this Memorandum Opinion.
U.S. v. Craig