United States District Court, D. Colorado
OPINION AND ORDER ADDRESSING OUTSTANDING
S. Krieger, Senior United States District Judge
MATTER comes before the Court for the purpose of
addressing all outstanding motions and other pretrial matters
in this case.
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.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.
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
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
Standard of review
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).
Motion to dismiss (#37)
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
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.
BLM's regulations governing the mining of gravel on
public lands can be found generally at 43 C.F.R. § 3601
et seq. 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.
Motion to Dismiss (# 54)
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.
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 ...