United States v. Allen

          OPINION AND ORDER ADDRESSING OUTSTANDING MOTIONS

          Marcia S. Krieger, Senior United States District Judge

         THIS MATTER comes before the Court for the purpose of addressing all outstanding motions and other pretrial matters in this case.

         This matter is subject to the protocol adopted for cases in Grand Junction. At a hearing on June 21, 2019, the Magistrate Judge issued an oral recommendation (# 75) finding that the following motions were pending: (i) Mr. Allen's Motion to Dismiss (# 37); (ii) Mr. Allen's Objection and Demand (# 54), which the Court construes as a motion to dismiss for lack of subject-matter jurisdiction; (iii) Mr. Allen's Motion to Exclude Statements (# 60); and (iv) Mr. Allen's Demand for Dismissal (# 67), which the Court construes as a motion to strike the Government's response (# 65) to Mr. Allen's subject-matter jurisdiction motion as untimely.^[1]The Magistrate Judge recommended that each of these motions be denied, with the exception of the Motion to Exclude Statements, which the Magistrate Judge recommended be granted in part and denied in part.

         Mr. Allen filed timely Objections (# 69) to the Magistrate Judge's recommendation and supplemented those Objections with a “Response in Detail” (# 71). A few days later, Mr. Allen filed a motion (# 73) seeking “a continuance to allow a response in detail” to the Recommendation. The Magistrate Judge granted that motion (# 74), giving Mr. Allen 14 days from the filing of the transcript of the June 21 hearing to file any supplemental Objections. That transcript was filed on July 12, 2019, making Mr. Allen's supplemental Objections due by July 26, 2019. As of the date of this Order, Mr. Allen has not filed any further Objections, and thus, the Court treats Docket #69 and 73 as Mr. Allen's Objections to the Magistrate Judge's Recommendation.

         Mr. Allen is charged in a one-count Indictment (# 1) with damaging public lands in violation of 18 U.S.C. § 1361. The Government represents that its evidence would show that, beginning in or about July 2013, Mr. Allen engaged in unauthorized gravel mining activity on BLM land in Saguache County, Colorado. BLM rangers spoke with Mr. Allen on several occasions, each time informing him that unauthorized mining on public lands was prohibited. In addition, they issued written orders directing him to cease his activities. Mr. Allen refused to do so, and it is alleged that his unauthorized activities continued into at least May 2014.

         A. Standard of review

         Because the Magistrate Judge's Recommendation with regard to Mr. Allen's motions to dismiss concerns dispositive issues, the Court reviews the objected-to portions of the Recommendation de novo. 28 U.S.C. § 636(b)(1)(B). The Recommendation with regard to Mr. Allen's motion to strike and motion to exclude statements addresses non-dispositive matters, and the Court reviews Mr. Allen's objections to those portions pursuant to the “clearly erroneous or contrary to law” standard of 28 U.S.C. § 636(b)(1)(A).

         B. Motion to dismiss (#37)

         In Docket #37, Mr. Allen contends that the charge against him should be dismissed because Mr. Allen “assert[s] possessory title to the valuable mineral lode locations” he is accused of unlawfully mining. He cites to portions of the 1872 Mining Law, including 30 U.S.C. § 22, which provides that “all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase [ ] by citizens . . . under regulations prescribed by law”; and 30 U.S.C. § 26, which provides that persons making claims on mineral lodes “shall have exclusive right of possession and enjoyment “ of surface rights, “so long as they comply with the laws of the United States.” At the June 21 hearing, Mr. Allen argued that the thrust of this motion was that the Government “is trying . . . to force the valuable mineral locator” - that is, Mr. Allen - “to give up his rights under the 1872 mining law of exclusive possession.” The Magistrate Judge found that Mr. Allen was raising factual arguments akin to a Motion for Judgment of Acquittal under Fed. R. Crim P. 29 and recommended that the motion be denied as premature because the Government had not presented its evidence.

         The Court has reviewed Mr. Allen's Objections and finds nothing that specifically objects to this finding. Even if Mr. Allen had objected, the Court, upon de novo review of Mr. Allen's motion, would deny it. The statutes Mr. Allen relies upon, quoted above, make clear that an individual who locates minerals on public lands and claims the right to mine them must still “comply with the laws of the United States.” The Bureau of Land Management (“BLM”) has issued various regulations that apply to persons claiming rights under various mining laws, including those cited by Mr. Allen. The applicable regulations depend, in large part, on the type of mining that is contemplated. The record is not entirely clear as to what type of mining Mr. Allen was doing, but the Court understands that Mr. Allen was mining to produce gravel.

         The BLM's regulations governing the mining of gravel on public lands can be found generally at 43 C.F.R. § 3601 et seq.^[2] See e.g. 43 C.F.R. § 3601.5 (defining “mineral materials” to refer to “common varieties of . . . gravel”). The regulations provide that persons cannot “extract, sever, or remove mineral materials from public lands . . . unless BLM . . . authorizes the removal by sale or permit.” 43 C.F.R. § 3601.71(a). The Court understands that the Government's position is that Mr. Allen lacked the required BLM permit or other legal authorization to remove gravel from the lands, and thus, the Government has at least a colorable argument that Mr. Allen's actions were not in compliance with BLM regulations and thus, not in compliance with the 1872 Mining Law. As such, the Government has articulated a colorable claim that Mr. Allen violated 18 U.S.C. § 1361. Accordingly, the Court finds that Mr. Allen's Motion to Dismiss must be denied.

         B. Motion to Dismiss (# 54)

         In his motion at Docket # 54, Mr. Allen makes a “demand for disclosure of the constitutional authority that gives the court the capacity to take jurisdiction and enter judgments, orders, and decrees in favor of the United States arising from a criminal or civil proceeding regarding a debt in Saguache County, Colorado.” In arguing the motion at the June 21 hearing, Mr. Allen explained that the Government's response to the motion “gave the statutory authority but not the constitutional authority asked for.” When the Government responded that it was relying on both statutory authority under 18 U.S.C. § 3231 (giving federal courts jurisdiction over federal crimes) and constitutional authority under Article IV (giving Congress the right to make laws regarding federal property, which resulted in 18 U.S.C. § 1361, the offense charged here), Mr. Allen responded that “Article IV, Section 3, Clause 2 applies only to Washington D.C. and the territories not within the Union.” Mr. Allen also offered a lengthy argument contending that the “United States means a federal corporation” and various other contentions that need not be recited here.

         The Magistrate Judge recommended that Mr. Allen's motion “be denied for the reasons essentially as set forth by the Government in their response, ” and explained that Mr. Allen's ...