NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 2 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-16779
Plaintiff - Appellee, D.C. No. 2:10-cv-01198-KJD-
VCF
v.
JOHN B. NELSON, MEMORANDUM*
Defendant - Appellant,
and
ROBERT DAVID KAHRE; RICHARD
W. WELLMAN,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
John B. Nelson appeals pro se from the district court’s summary judgment in
the government’s action for trespass seeking to eject Nelson and others from a mill
site on federal land and to require them to complete reclamation or pay the cost of
reclamation. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
the district court’s summary judgment, United States v. Milner, 583 F.3d 1174,
1182 (9th Cir. 2009), and its dismissal of defendants’ counterclaims for lack of
subject matter jurisdiction, Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th
Cir. 2006). We affirm.
The district court properly granted summary judgment on the government’s
trespass claim because Nelson failed to raise a genuine dispute of material fact as
to whether he continued to occupy the mill site after the expiration of the notice of
operations, and whether the United States was the owner of the property. See 43
U.S.C. § 1733(g) (“The use, occupancy, or development of any portion of the
public lands contrary to any regulation of the Secretary or other responsible
authority, or contrary to any order issued pursuant to any such regulation, is
unlawful and prohibited.”); 43 C.F.R. § 2808.10(a) (defining trespass). Contrary to
Nelson’s contentions, the district court properly enjoined further use of the
property and ordered defendants to complete reclamation or pay the cost of such
reclamation. See 43 C.F.R. §§ 2808.11(a)(3), 3809.335 (discussing liability for
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trespass and post-expiration notice obligations, including reclamation).
The district court properly determined that it lacked subject matter
jurisdiction over Nelson’s “restraint of trade” and “fraud” counterclaims because
Nelson did not exhaust administrative remedies. See Cadwalder v. United States,
45 F.3d 297, 300-01 (9th Cir. 1995) (explaining exhaustion requirements for tort
claims against the United States).
The district court properly dismissed Nelson’s counterclaim alleging a
taking in violation of the Fifth Amendment because Nelson sought over $10,000 in
damages and did not show that any statute waived sovereign immunity with respect
to the claim. See McGuire v. United States, 550 F.3d 903, 910-11 (9th Cir. 2008)
(Court of Federal Claims has exclusive jurisdiction over takings claims seeking
over $10,000 in damages absent an independent waiver of sovereign immunity and
grant of federal district court jurisdiction).
The district court did not abuse its discretion in denying Nelson’s recusal
motion because Nelson failed to show that the district judge’s impartiality might
reasonably be questioned. See Milgard Tempering, Inc. v. Selas Corp. of Am., 902
F.2d 703, 714 (9th Cir. 1990) (standard of review and grounds for recusal).
We reject Nelson’s contentions that the government admitted the allegations
of the counterclaims, that the counterclaims should be construed as alleged against
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foreign entities, and that the district court failed to permit adequate discovery or
violated due process in its consideration of defendants’ affirmative defenses.
We do not consider matters raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
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