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Uecker v. United States Forest Service

United States District Court, D. Colorado

February 28, 2019

JASON UECKER, and QUENTIN GOOD, Plaintiffs,
v.
UNITED STATES FOREST SERVICE, Department of Agriculture, and JOSHUA VOORHIS, individually, and in his official capacity as District Ranger, South Park Ranger District, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the Motion to Dismiss [#18], [1] filed by Defendants United States Forest Service, Department of Agriculture[2] (“Forest Service”) and Joshua Voorhis (“Voorhis”) in his official capacity; and on the Motion to Dismiss [#19], filed by Defendant Voorhis in his individual capacity (collectively, the “Motions”). Plaintiffs, who proceed as pro se litigants, [3] filed Responses [#21, #26, #27][4] in opposition to the Motions [#18, #19], and Defendants filed Replies [#24, #28, #29] in further support of the Motions.[5]Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motions have been referred to the undersigned for a recommendation regarding disposition. See [#23]. The Court has reviewed the Motions, the Responses, the Replies, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motions [#18, #19] be GRANTED.

         I. Background [6]

         For many years, Plaintiffs have worked two unpatented mining claims located on United States National Forest property in Teller County, Colorado. Although the precise relationship between the two claims (named “Blue on Black” and “Dreamtime”) is unclear, they appear, at a minimum, to be located next to one another and worked by Plaintiffs from the same camp site.

         Since 1998, Plaintiff Jason Uecker (“Uecker”) has worked the Blue on Black claim. Pls.' Ex. 6, June 17, 2004 Decision Notice [#27-6] at 2. In order to work claims on National Forest property, a plan of operations must be submitted and approved by the local District Ranger. See 36 C.F.R. § 228.5. Plaintiff Uecker initially worked his claim without such a plan in place. Pls.' Ex. 5, Surface Use Determination [#27-5] at 3. Three proposed plans that he submitted in August 1999 and in 2002 were not approved, but he submitted a fourth plan in April 2003 (which was later modified in July 2003). Id. In early June 2003, South Park District Ranger Sara Mayben (“Mayben”) requested that a Surface Use Determination study be conducted for the Blue on Black claim to help her decide whether Plaintiff Uecker's latest proposed plan should be approved. Id. On December 4, 2003, the Surface Use Determination report was completed, ultimately stating that his proposed plan was “reasonable” and recommending that the plan “should be approved if his proposal meets all of the other regulatory requirements.” Id. at 4. Plaintiffs allege that a similar Surface Use Determination was issued for the Dreamtime mining claim owned by Plaintiff Quentin Good (“Good”). Compl. [#1] at 6.

         On June 17, 2004, District Ranger Mayben conditionally approved Plaintiff Uecker's proposed plan, stating in part:

I will approve the plan of operations with specific supplemental modifications outlined in this Decision Notice for a period of five years through December 31, 2009. At that time if the operator requests, the Forest Service will perform a [National Environmental Policy Act (“NEPA”)] compliance review and may extend the plan of operations for an additional five years if the operation is consistent with NEPA requirements at that time, and is within the scope of this [environmental assessment] and decision. At the end of 10 years, the operator will be required to submit a new plan of operations for a full scale NEPA analysis by the Forest Service.

Pls.' Ex. 6 [#27-6] at 6. At the end of the Decision Notice, information was provided which explained how any part of District Ranger Mayben's determination could be administratively appealed within forty-five days.[7] Id. Thus, Plaintiff Uecker's plan of operations was thereafter approved through December 31, 2009, with a possible extension through December 31, 2014. Id. Plaintiffs allege that a similar Decision Notice was issued for Plaintiff Good's Dreamtime mining claim, approving his plan of operations. Compl. [#1] at 9.

         After Plaintiffs' plans of operations expired on December 31, 2009, the Forest Service officially determined that Plaintiffs' mining claims were no longer in compliance with federal regulations, although Plaintiffs alleged that they “repeatedly asked” for an extension of their previously approved plans and/or for approval of new mining plans. Id. at 10. Plaintiffs assert that the adverse decisions on their appeals from the denial of their extensions and/or new plans were not timely issued, thus making those decisions invalid. Id. at 10-11.

         On October 2, 2015, a letter was sent to Plaintiff Good by Defendant Joshua Voorhis (“Voorhis”), the new District Ranger, telling him that he must remove all of his property from the Dreamtime site. Id. at 14. This letter stated:

A letter was sent to you on October 31, 2013, from the Acting Forest Supervisor, upholding District Ranger Sexton's Administrative Decision dated May 2, 2013. This letter instructed you to cease and desist all mining activities until such time as you could comply with the requirements set forth in 36 CFR 228, subpart A, regulations, which require you to submit a Plan of Operations to the U.S. Forest Service for review and approval. As of this date, the South Park Ranger District has not received your Plan of Operations.
I am hereby notifying you that your operations on National Forest System lands without an approved Plan of Operations are unnecessarily and unreasonably causing injury, loss and damage to surface resources. The activities of concern are:
• Use of mechanized equipment;
• The wire and t-post perimeter fence and metal gate, which restrict access by the general public to National Forest System lands;
• Cutting green trees;
• On-site structures such as the perimeter fence (wire and t-post), trailer, and signs;
• The open excavations;
• Trash and assorted personal property scattered throughout the site.
Therefore, you are in non-compliance with the requirements of 36 CFR 228.4(a) (plan of operations requirements), 228.5(a) (operations shall be conducted in accordance with an approved plan of operations), and 261.10(p) (operating on NFS lands without an approved plan of operations.)
Until you have complied with the regulations in 36 CFR 228 by obtaining an approved Plan of Operations for your mining-related activities on your Dreamtime Unpatented Mining Claim, you must Cease and Desist all surface disturbing activities immediately.
I am enclosing a Plan of Operations form for you to fill out. Please note that filling out the enclosed Plan of Operations does not alleviate your obligation to cease and desist all surface disturbing activities. If you plan on lawfully conducting mining-related activities on your Dreamtime unpatented mining claim, you must fill out this Plan of Operations. Until then, you may not resume your operations.
Please return the Plan of Operations to me by November 1, 2015. Once I have received it, your proposal will be analyzed by the district specialists and your bond amount will be reviewed in order to determine whether any further bonding will be needed to cover your current and proposed activities. Of course, the sooner your completed Plan of Operations is received, the sooner this process may be started, and the sooner your operations may resume.
If the South Park Ranger District does not receive your Plan of Operations by November 1, 2015, you will face charges under 36 CFR 261 for operating on NFS lands without an approved plan of operations.
Regardless of your submission or non-submission of your Plan of Operations, the Forest Service will require to you to remove all structures (i.e. trailer, gate, fence - including wire and t-posts, platform/stage, sign), mechanized equipment (i.e. backhoe, front end loader, etc.), and personal property by November 9, 2015. If you do not remove the trailer, fence, gate, sign, mechanized equipment, and all personal property, the Forest Service will proceed with impoundment procedures, which will result in additional costs to you.

Defs.' Ex. 1, Oct. 2, 2015 Letter from Voorhis to Good [#18-1].

         On June 6, 2017, a letter was sent to Plaintiff Uecker by Defendant Voorhis, stating: “that if you did not vacate the site and remove all your personal property, structures, and improvements on the Blue on Black claim by July 6, 2017, your equipment and inanimate property would be in trespass and subject to impoundment.” Compl. [#1] at 14.

         On September 27, 2017, Defendant Voorhis “led a team of Forest Service employees and private contractors as they removed valuable and necessary mining equipment” and other property (including signs and papers marking their mining claims) from the Blue on Black and Dreamtime mining claims worked by Plaintiffs. See Compl. [#1] at 3-5, 7; see also Ex. A to Compl. [#1-1]; Ex. B to Compl. [#1-2]. Plaintiffs were told that the removed property was being impounded through an administrative action rather than through a law enforcement action, although a law enforcement officer was on-site to supervise. Compl. [#1] at 5. Plaintiffs assert that the impoundment occurred without a hearing, court order, or the ability to appeal the decision to impound. Id. at 7-8. They further assert that they are authorized to operate their mining claims based on (1) the prior Surface Use Determinations, [8] (2) approval of their old plans of operations by a prior Forest Service District Ranger, [9] and (3) a Reclamation Permit from the Colorado Division of Reclamation, Mining and Safety (an agency of the State of Colorado) which “contained all the information required by 36 CFR 228, subpart A.”[10] Id. at 6-7, 9, 11-12.

         Plaintiff Good alleges that he did not receive an impoundment notice until two days after the impoundment occurred, although he provides no allegations regarding when the impoundment notice was mailed to him. Id. at 13. On November 1, 2017, Defendant Voorhis sent him another letter. Id. at 14.

I notified you in my letter on September 12, 2017, that the Forest Service would proceed with the impoundment of any and all unauthorized fences and gates, personal property, equipment or vehicles located on the Dreamtime mining claim (CMC 250821) that remained on site after September 17, 2017. . . .
In this same letter, you were issued an Impoundment Notice for your unauthorized personal property on your Dreamtime unpatented mining claim, the terms of which could be enforced on or after September 17, 2017. The U.S. Postal Service receipt shows that these letters were delivered to your P.O. Box on September 15, 2017. Since you did not remove the unauthorized property from the site, and made no contact with any Forest Service officer to arrange to do so, Forest personnel completed the impoundment on September 27, 2017.
I remind you that on October 31, 2013, the Forest Service issued its final appeal decision affirming that your approved plan of operations, which was signed on January 28, 2005, for mining operations on the Dreamtime Claim had expired on December 31, 2009, and that you needed to seek and obtain approval of a new plan of operations to continue mining. There have been several communications from the Forest Service since that time advising you of the information you needed to provide to obtain approval of a new plan of operations from the Forest Service. On October 2, 2015, I sent a letter notifying you that you either needed to obtain authorization in an approved plan of operations or vacate the site and remove all your personal property, structures, and improvements on the Dreamtime claim by November 9, 2015. On March 2, 2016, I sent a follow-up letter notifying you that you still had not provided the necessary information to obtain Forest Service approval of a plan of operations, therefore your equipment and inanimate property would be in trespass and subject to impoundment. As of the date of this letter, you have yet to remedy your unauthorized operations.
Again, unless you notify and obtain approval in advance from the South Park Ranger District, any further use of mechanized equipment on the Dreamtime claim for mining related activities will be subject to enforcement action under Forest Service regulations governing mining and prohibited acts on National Forest System lands. The mining regulations (36 CFR 228 Subpart A) require you to obtain approval through a plan of operations for any significant disturbance to surface resources.
The actions the agency took will help ensure that unnecessary damage caused by your unauthorized mining activities to National Forest resources will not occur. To ensure protection of your personal items that were removed from the Dreamtime claim including: rock specimens, personal property, metal T-posts, barbless wire, signs, gate, trailer, John Deere 510B Backhoe, etc., the Forest Service has stored them in a secure location. However, due to the volume of miscellaneous items and the potential health and safety hazards associated with removal, many other items were left in place. These items included:
1. All items in the “main pit” excavation;
2. Wood pallets under the mineral specimen table;
3. Various small mineral specimens on specimen table;
4. Platform/sound stage located near your access road and gate;
5. Multiple picnic tables;
6. Fencing supplies and signs;
7. Miscellaneous bottles, cans, scrap metal/wood.
You will need to remove these items within 15 days of the date on this letter (November 16, 2017). If you do not, the remaining property may be subject to impoundment by the Forest Service. Such impoundment will be conducted as funds and manpower are available. Failure of the Forest Service to remove, or impound in place, the structures, improvements or personal property within a certain time period does not constitute a waiver of my determination that the property is subject to impoundment.
My letter to you of September 12, 2017, also noted that should it be necessary for the Forest Service to do the impoundment, you could be billed to recover those costs. Your failure to comply has resulted in the Forest Service's unavoidable expenditures of public money to remedy the damage you caused to surface resources during your unauthorized occupancy and operations.
Accordingly, I have decided that it is appropriate to bill you for the costs incurred to date. Enclosed is an itemized statement tabulating the expenditures which total $17, 633.92. You will be receiving a bill for this expenditure in the mail. These costs only include the cost of the impoundment that has occurred.
In addition the Forest Service is coordinating with the State of Colorado, Division of Reclamation, Mining and Safety (DRMA) to forfeit your 2011 financial warranty, which will be utilized to cover the cost of final reclamation. Any additional expenses, not covered by the bond, may be billed to you separately.
The impounded property will be held by the Forest Service for a period of 90 days, after which it may be disposed of if not redeemed according to federal regulations at 36 CFR 262.12 and 36 CFR 262.13. The 90-day period commenced September 28, 2017, the day after the impoundment was completed, and will expire at midnight December 26, 2017. Enclosed is a copy of the regulations governing Forest Service impoundment procedures.
You may make arrangements with my office to redeem your property within the 90-day period. In order for property to be released, you must submit proof of ownership and pay all expenses incurred by the United States in advertising, gathering, moving, and impounding your property. As stated above, this amounts to $17, 633.92.
Impounded property that is not redeemed by the date set for its disposition (December 27, 2017) shall become the property of the United States and may be retained by the Forest Service for official use, sold at public sale to the highest bidder, or otherwise disposed of as deemed appropriate by the Forest Service. When impounded property is sold, the forest officer conducting the sale shall furnish the purchaser with a bill of sale or other written instrument evidencing the sale. Please note, you will remain liable for all costs associated with impoundment, removal, transportation, and storage of the property, minus any amount received from the sale of the property.

Pls.' Ex. 7, Nov. 1, 2017 Letter from Voorhis to Good [#27-7].

         As a result of the foregoing, Plaintiffs assert the following legal claims: (1) violation of the General Mining Act of 1872, 30 U.S.C. § 21, (2) violation of the Common Varieties Act, also known as the Surface Resources Act of 1955, or the Surface Resources and Multiple Uses Act, 30 U.S.C. § 601 et seq., see Copar Pumice Co., Inc. v. Tidwell, 603 F.3d 780, 785 (10th Cir. 2010), (3) violation of the Fourth Amendment (unreasonable seizure), (4) violation of the Fifth Amendment (both substantive and procedural due process), (5) conversion, (6) violation of Colo. Rev. Stat. 34-46-103, (7) “breach of trust, ” (8) “prohibiting and preventing bona fide mining operations, ” (9) “deprivation of beneficial use of real property, ” (10) violation of the Colorado Constitution, and (11) violation of 36 C.F.R. § 228, subpart A. See Id. at 2-4.

         Plaintiffs seek the following relief: (1) “[r]eturn of all property taken from the Blue on Black and Dreamtime mining claims on September 27, 2017, at no cost to Plaintiffs;” (2) “[r]eplacement of all Plaintiffs' property that was damaged or destroyed during the ‘impoundment,' in transit to the facility where such property was stored following the seizure, or during the storage period, ” (3) “[r]eplacement of all plaintiffs' property that may be sold at auction or otherwise appropriated by the Forest Service, ” (4) “[p]unitive damages in the amount of 4 times actual damages awarded, or whatever punitive damages the court or jury finds appropriate, ” (5) “[a]n order from the court prohibiting the United States Forest Service from causing any further material interference or endangerment to operations on plaintiffs' mining claims without a court order or warrant, ” (6) “[a]n order from the court compelling the United States Forest Service to post an advertisement in a local paper stating that plaintiffs' property was taken without due process of law” in order “to protect plaintiffs' standing in the community, ” (7) “$1000 per day for each claimant for every day each claimant has been or will be prevented from working their claims, ” (8) “Plaintiffs' court costs and attorney's fees, ” and (9) “[a]ny other remedies the court finds it proper to grant.”[11]Id. at 18-19; see also Id. at 19-22 (providing the basis for Plaintiffs' requested injunctive relief).

         In the present Motions [#18, #19], Defendants assert that all of Plaintiffs' claims should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).

         II. Standard of Review

         A. Federal Rule of Civil Procedure 12(b)(1)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because “federal courts are courts of limited jurisdiction, ” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

         A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on “evidence outside the pleadings” to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.

         B. Federal Rule of Civil Procedure 12(b)(6)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind,173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” (quoting Twombly, 550 U.S. at 570)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant ...


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