Property Rights: Miners' Rights on Public Land Gain Support in Ninth Circuit
The Ninth Circuit U.S. Court of Appeals has sided with a miner in a feud between the miner and the U.S. Forest Service. In interpreting the Mining Law of 1872 and the 1955 Multiple Use Act, the court ruled that the Forest Service could not kick a miner off his claim in the Tonto National Forest, and that the Forest Service may not have had justification for increasing a reclamation bond requirement.
In an opinion that recounted the history of mining laws in the United States, Circuit Judge Andrew Kleinfeld made clear that the owner of a valid mining claim on public land has great rights. Writing for the unanimous three-judge panel, Kleinfeld cited the U.S. Supreme Court's decision in Wilbur v. United States ex rel. Krushnic, 280 U.S. 306 (1930), which stated, "[W]hen the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of present and exclusive possession. The claim is property in the fullest sense of that term … ."
The case involved the Forest Service's attempt to remove Ray and Molly Shumway from the location of two mill site claims — the same as mining claims — in Arizona's Tonto National Forest. The Forest Service had first approved a mining and milling operation plan for the sites in 1979. In 1981, the Forest Service approved a revised plan that allowed a cyanide leaching operation.
However, in 1987 the Forest Service ordered the Shumways to move off the site and to remove a horse, trash and equipment, which the Forest Service termed "junk." The Forest Service also raised its requirements for a bond intended to ensure site reclamation from $5,200 to $18,000. In 1991, the Forest Service ordered the Shumways to halt all mining and move out because they had not posted an acceptable bond. The Forest Service also advised the Shumways that a new operating plan would likely come with a requirement for a $150,000 to $200,000 bond.
The Shumways did not leave the property, so the federal government sued the Shumways in 1995 to evict them and to require them to remove their belongings and clean up the sites. Arizona District Court Judge Stephen McNamee issued a summary judgement for the government.
On appeal, the Shumways argued that their equitable title in the mill site claims entitled them not to be treated as trespassers, that the increase in bond amounts was impermissible and that Judge McNamee failed to consider evidence they presented. The Ninth Circuit panel reversed McNamee.
So long as the claims were not shams and the Shumways abided by Forest Service regulations, they were entitled to possess the mill site claims, the court ruled. "The owner of a mining claim owns property, and is not a mere social guest of the Department of the Interior to be shooed out the door when the Department chooses," Kleinfeld wrote. No one disputed that the claim was bone fide and that the Shumways owned it.
The court took particular exception to the Forest Service's description of the Shumways' tools and equipment as "junk.." Furthermore, the court said, failure to file an approved mining plan — the Shumways' was rejected for failure to provide the $18,000 surety bond — does not cost the owner his claim. "Like someone who proposes to operate a nursing home in an area zoned for single family residential and light retail, regulations may prohibit their proposed use, but it does not follow that they forfeit their interests in the real estate," Kleinfeld wrote.
As for the bond amount, the court ruled that triable issues of fact existed and the lower court should not have issued a summary judgement. The Ninth Circuit said that Judge McNamee erred when he disregarded affidavits from Ray Shumway and his expert witness, both of whom discussed operations at the mill site claims.
U.S. v. Shumway, No. 96-16480, 99 C.D.O.S. 3, filed December 28, 1999.
For U.S.: Robert Bartels, assistant U.S. attorney, Phoenix, (602) 514-7500.
For Shumway, Arthur Lloyd, Payson, Arizona, (520) 474-6727.