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NOT FOR PUBLICATION OCT 27 2010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