United States v. Clifford Tracy ( 2010 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                OCT 27 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 09-36128
    Plaintiff - Appellee,              D.C. No. 1:09-cv-03078-PA
    v.
    MEMORANDUM*
    CLIFFORD R. TRACY,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Oregon
    Owen M. Panner, District Judge, Presiding
    Argued and Submitted October 8, 2010
    Portland, Oregon
    Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.
    Defendant Clifford Tracy appeals the judgment and injunction entered by
    the district court in favor of the United States on the Government’s civil complaint
    alleging that Tracy trespassed on National Forest land. We affirm.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Tracy’s due process argument in this case is identical to the one raised in his
    appeal of his criminal conviction, No. 09-30408. We reject Tracy’s due process
    argument here as we did there. Tracy failed to avail himself of the due process
    available to him and as such cannot now seek its protection after taking matters
    into his own hands. See Hudson v. Palmer, 
    468 U.S. 517
    , 539 (1984) (O’Connor,
    J. concurring); United States v. Lowry, 
    512 F.3d 1194
    , 1203 (9th Cir. 2008).
    We also reject Tracy’s argument that he cannot be a trespasser because he
    had a right of possession in the land as the holder of an unpatented mining claim.
    The Mining Law of 1872 makes clear that the possessory right of the holder of an
    unpatented mining claim is conditional on “comply[ing] with the laws of the
    United States, and with State, territorial, and local regulations not in conflict with
    the laws of the United States governing [his] possessory title.” 
    30 U.S.C. § 26
    .
    Subsequent statutes further demonstrate that Tracy’s right to possession is subject
    to his compliance with Forest Service regulations. The Organic Act provides that
    any person entering the a national forest “must comply with the rules and
    regulations covering such National Forest.” 
    16 U.S.C. § 478
    . The Surface
    Resources Act of 1955 amended the Mining Law to make any unpatented mining
    claim discovered after 1955 “subject . . . to the right of the United States to manage
    and dispose of the vegetative surface resources thereof and to manage other surface
    2
    resources thereof.” 
    30 U.S.C. § 612
    (b). Tracy failed to comply with Forest
    Service regulations governing his mining claim. He therefore had no right to
    possess the land and was a trespasser.
    We have previously held conduct similar to Tracy’s to constitute trespass.
    See, e.g., United States v. Brunskill, 
    792 F.2d 938
     (9th Cir. 1986) (affirming
    district court’s injunction requiring removal of structures on claim where
    defendants did not have approved plan of operation); United States v. Goldfield
    Deep Mines Co. of Nev., 
    644 F.2d 1307
    , 1310 (9th Cir. 1981).
    We reject the argument that an individual can only be a trespasser if his
    mining claim is held invalid. As we stated in Goldfield, “the right to protect Forest
    Service lands from waste is separate from and in addition to the right to challenge
    mining claims.” 
    Id. at 1309
    . Similarly we find unpersuasive Tracy’s attempt to
    distinguish the above cases on the ground that the defendants in those cases were
    also found to have invalid mining claims. In Brunskill we explicitly stated that
    “[w]e affirm the district court order, but on the limited grounds that the Brunskills
    do not have an approved plan of operation . . . . We do not pass on whether . . . the
    mining claims at issue are valid.” Brunskill, 
    792 F.2d at 938
    .
    AFFIRMED.
    3
    

Document Info

Docket Number: 09-36128

Judges: Tashima, Paez, Clifton

Filed Date: 10/27/2010

Precedential Status: Non-Precedential

Modified Date: 3/2/2024