United States District Court, D. Oregon
S. AMANDA MARSHALL, United States Attorney, JENNIFER J. MARTIN, Assistant United States Attorney, Portland, OR, Attorneys for Plaintiff.
ERNEST WARREN, JR., Warren & Sugarman, Portland, OR, Attorneys for Defendants.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendant John M. Wasson's Appeal (#3) of the Judgment entered in this matter by Magistrate Patricia Sullivan on September 30, 2013.
For the reasons that follow, the Court AFFIRMS the Judgment.
The following facts are taken from evidence and exhibits adduced at trial:
On March 28, 2012, Defendant John M. Wasson submitted a Notice of Intent (NOI) to United States Forest Service District Minerals and Special Use Administrator Christine Helberg in which Defendant set out his intent to mine his unpatented mining claim from "April until the weather closes operations in the fall." ER 22. Defendant stated in his NOI that he intended to mine "using hand tools except for the in-water period when we intend to operate suction dredges of 4 inch or smaller intakes." Id. Defendant also stated "[s]ewage will be collected in a port-a-potty at the campsites and disposed of at a suitable disposal site. Work site waste will be bear-in-the-woods' utilizing cat holes' south of the work site and distant from the river." ER 23.
On April 25, 2012, Acting District Ranger Joy Archuleta sent Defendant a letter in which she noted the Forest Service's understanding that, among other things, Defendant intended to work "the claim intermittently from April through October" 2012; "no equipment will be left onsite after Oct 30, 2012"; and a "port-a-potty will be used at the site and the resulting sewage will be disposed of at a sewage disposal site and not buried or left on top of National Forest System lands." ER 24-25. Based on that understanding, Archuleta advised Defendant that his "proposed activities... will not require a formal Plan of Operations." ER 25. Archuleta further advised Defendant:
Please remember that you are responsible to ensure your activities are conducted in such a manner that no adverse environmental impacts to National Forest resources occur (36 CFR 228.8). If you intend to increase your operations, and it might cause a "significant" disturbance of the surface resources, you are required to provide notice to this office (36 CFR 228.4). Continued use of this area and/or cumulative effects beyond your control may require you to submit a Plan of Operations. This determination will need to be made on a yearly basis... but it could also happen during the year if conditions change (36 CFR 228.4 (a)(2)).
Pursuant to the regulations governing Forest Service oversight of mining operations, Helberg inspected Defendant's mining site on April 30, 2012, and July 19, 2012. ER 26-29.
On September 26, 2012, Helberg inspected Defendant's site with Caty Clifford and noted Defendant had brought a second trailer onto the site "for storage." ER 31. Helberg advised Defendant that he was allowed to have only one trailer because he was prospecting and, therefore, "doesn't need any storage." ER 31. Helberg directed Defendant to remove the second trailer and "clean up the place." Id. Helberg noted in her Mining Inspection Form that Defendant "made a joking comment about staying all year around and [Helberg] reminded [Defendant] of his Oct NOI date and the fact that this area gets snowed in." Id. Clifford expressed concern because the "site is so close to the river that an accidental spill from a chemical toilet could easily get into the river." Id.
On November 1, 2012, Helberg inspected Defendant's site again and noted the second trailer had not been removed from the site. Helberg noted in her Mining Inspection Form that an individual mining the site with Defendant "was upset that [Defendant] had told him that it was okay to bring in his camper for the winter when we were expecting him to leave." ER 33. When Helberg talked with Defendant about his "intent to stay on the claim all winter, he made no bones about it and was very up front." ER 33. Helberg reviewed with Defendant his March 2012 NOI as well as the Forest Service's concerns about Defendant remaining on the site through the winter. Helberg left Defendant a "blank POO [Plan of Operations] form" to apply to stay on the site all winter. Id.
On November 12, 2012, District Ranger Robert Varner sent Defendant a Notice of Noncompliance for his mining site. Varner advised Defendant that, among other things:
It has come to my attention that your activities on the claim have exceeded those that were described in your Notice of Intent (NOI) which you submitted on March 16, 2012.
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On Nov 1, 2012 a follow up and year-end inspection was completed by Chris Helberg in which she found that you were still on site and had no intention of leaving the site for the winter. Your continued occupancy of the site along with additional equipment is considered significant under 36 CFR 228.4 (4) and will require an approved Plan of Operations. You have until November 21, 2012 to winterize your operations and remove your trailers, tents, camper and other associated living quarters.
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Until a Plan of Operations is submitted and approved; you will need to remove the following items by Nov 21, 2012. Failure to remove these items will result in a citation and fine under 36 CFR 261.10(b) and 36 CFR 261.10(p).
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You are hereby notified that you are in non-compliance of the requirements of Title 36, Code of Federal Regulation (CFR) 228.4 (a) (Plan of Operation-Notice of intent-requirements), 228.5(a) (Operations shall be conducted in accordance with an approved Plan of Operations), 261.10(b) (Occupying National Forest System lands without authorization), and 36 CFR 261.10(p) Use or occupancy of National Forest System lands or facilities without an approved operation plan when such authorization is required.
On November 15, 2012, Helberg visited Defendant's mining site again and hand-delivered a copy of Varner's November 12, 2012, letter to Defendant. Helberg reported in her Mining Inspection Form that she spoke to Defendant for about 30 minutes, and Defendant "was very adamant about staying the winter." ER 36. She and Defendant also talked about the following
Must leave until POO is approved and Bond in place
He asked about moving to another location (again year around so must be warranted in a POO)
Ask him it he planned to mine in the snow, he said no, didn't mine in the rain either
He referenced a case on the coast were [ sic ] the people only had to pay 2000$ to get there [ sic ] stuff back
I discussed what would happen next,
º Law enforcement would come on the next visit
º If we had to remove his property then he would have to pay for the removal
Asked if he could bid on the removal of the property.
On November 29, 2012, Helberg visited Defendant's mining site with "Law Enforcement Officer DeWayne Ross." Defendant was not there, but his equipment remained at the site (including two trailers, a camper, and various other things). Helberg took pictures of the site and the items remaining there.
On December 6, 2012, Defendant met with Varner, Helberg, and Ross at the Forest Service Office in Ukiah, Oregon. The meeting was preserved on videotape, portions of which were presented as evidence at trial. At the December 6, 2012, meeting Varner advised Defendant that Defendant's stay on his mining site longer than 14 days "creates impacts on the resources." ER 74. Varner noted "[t]he fact that [Defendant has] tents and trailers that are there for a longer period of time than basically just a[n] incidental use - fourteen days, you're in, you're doin' your stuff, and then when you go back, you take your trailer and stuff with you" was causing an impact on the salmon steelhead "rearing habitat" on the river. ER 74. Defendant conceded the type of mining he was doing was "pick and shovel mining." ER 75. According to Varner, therefore, "[i]t fits in the back of your pick up or your rig or whatever. It's transitory: it can go with you, it can come with you, it can leave with you." ER 75. Varner made clear he was not telling Defendant that he could not mine, but he was telling Defendant that he could not "make a residence on the forest." ER 75. Defendant disagreed and stated he believed he had a right to be at the site for as long as he needed to be. ER 75. Finally, Varner, Ross, and Defendant had the following exchange:
Ross: When can you have that stuff gone so you can move forward?
Wasson: Uh. Probably not until Wednesday ...