United States v. Backlund
677 F.3d 930
9th Cir.2012Background
- Mining on National Forest System lands is governed by the Mining Law of 1872, which grants surface rights but subjects uses to regulatory oversight and limits on surface disturbance.
- Under the Organic Administration Act and 36 C.F.R. part 228, significant surface disturbance requires an approved plan of operations by the Forest Service, and most non-mining uses require a special use authorization.
- Backlund and Everist resided on their mining claims, claiming the residency was reasonably incident to mining; the Forest Service concluded the residences were not reasonably incident and lacked any special use authorization.
- They were charged under 36 C.F.R. § 261.10(b) for occupying or using a residence on National Forest System lands without proper authorization.
- At district court, Backlund pled guilty to § 261.10(b) (with the government dropping charges against Mrs. Backlund) and Everist was convicted after a bench trial; both challenged the agency determinations as the basis for criminal liability.
- The Ninth Circuit held that the Forest Service may regulate residency on bona fide mining claims, § 261.10(b) is not unconstitutionally vague, and the APA allows judicial review if administrative exhaustion requirements are met; Backlund exhausts and may seek review in criminal proceedings, while Everist did not exhaust and cannot obtain direct review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to regulate residency on mining claims | Backlund and Everist contend residency cannot be regulated by the Forest Service on mining claims. | The Forest Service may regulate occupancy if not reasonably incident to mining and if required by plan or special use. | Forest Service authority affirmed; residency not automatically permitted on unpatented mining claims. |
| Vagueness of 36 C.F.R. § 261.10(b) | The rule is unconstitutionally vague and vague notice violates due process. | The statute provides clear notice that residency requires authorization; there is actual notice and regulatory structure. | Not unconstitutionally vague; properly gives notice and aligns with regulatory framework. |
| Exhaustion and availability of APA review in criminal prosecutions | APA review is available and collaterally reviewable in criminal case; Mendoza-Lopez-like rights apply. | Administrative remedies must be exhausted; collateral attacks in criminal cases are limited. | Backlund exhausted and may seek APA review in district court or in the criminal case; Everist did not exhaust and cannot collaterally attack in criminal proceeding. |
| District court's preclusion of merits challenges to agency decisions | The district court improperly barred challenges to the agency's determinations as affirmative defenses. | Administrative determinations can be reviewed via APA and regulatory schemes; preclusion may be appropriate if improper. | Backlund's challenge to the plan-of-operations denial must be evaluated under APA review; the preclusion was error and remand is warranted; Everist's conviction affirmed. |
Key Cases Cited
- In re Brunskill, 792 F.2d 938 (9th Cir. 1986) (residential structures on mining claims can be significant surface disturbances requiring plans of operation)
- United States v. Nogueira, 403 F.2d 816 (9th Cir. 1968) (permanent residence not reasonably related to mining not authorized by § 612)
- United States v. Doremus, 888 F.2d 630 (9th Cir. 1989) (government may manage surface resources consistent with mining uses; endangerment standard)
- Coleman v. United States, 363 F.2d 190 (9th Cir. 1966) (APA review can proceed notwithstanding absence of direct appeal; Coleman remanded for APA consideration)
- United States v. Lowry, 512 F.3d 1194 (9th Cir. 2008) (collateral attacks on agency decisions may be barred when direct review was available and not pursued)