William B. Murray, Portland, Or., for defendants-appellants.

James W. Moorman, John H. Harmon, Asst. Attys. Gen., Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT and GOODWIN, Circuit Judges, and THOMPSON,* District Judge.

Some form of poetic justice may lie in the fact that this action arose in the Gifford Pinchot National Forest in the State of Washington, named for a man who was in the vanguard of conservationists and environmentalists.

In 1970 the appellants, Ned and Dorothy Richardson, filed notices of location for six mining claims in the Wind River Ranger District. The claims were situated at the confluence of Slide Creek and the East Fork of the Lewis River, an area reforested after a destructive fire some forty years ago. The area was heavily used by campers and fishermen.

Appellants explored and prospected their claims by use of heavy equipment (a bulldozer and a backhoe) and by blasting. Surface disturbance by bulldozing of three separate areas affected approximately 1.6 acres. Two trenches were excavated, one approximately 75 feet by 65 feet by twelve feet deep; the other approximately 300 feet by 100 feet by 15 feet deep. From the early days of these activities forest rangers remonstrated with the Richardsons respecting the excessive and unnecessary surface and environmental damage caused by their methods of prospecting and suggested core drilling as an alternative, but the suggestions were not heeded. Ultimately this action was filed to enjoin further blasting and bulldozing and to restore surface damage.

To place this case in proper perspective it should be said that these were genuine prospecting activities conducted at considerable expense (some $40,000) for the purpose of developing a mine. The Richardsons used the methods they deemed best for the purpose of removing the overburden and uncovering the ore body. Inasmuch as the prospect was, at best, a low grade copper deposit, it was essential to demonstrate the existence of a large body of ore for commercially feasible mining. The report of the government's own expert geologist states: "The prospect does justify continued exploration which should be designed to indicate the presence of commercial grade ore . . . " The report also stated:

"The goal of a successful exploration effort on a deposit such as this will be to delineate sufficiently large tonnages of 0.6-0.8% Copper equivalent rock which would be amenable to open pit or block caving mining methods. Using the above grades as one economic parameter, a minimum size deposit of 30,000,000 tons would justify probable production at 5,000 to 7,500 TPD. This size deposit would represent a volume block of 330,000,000 cu. ft. or 1,000' X 1,000' X 330' basic dimensions. The only acceptable initial approach to exploration of this type deposit would be core drilling after performance of all applicable surface geotechnical surveys. Small area excavations are virtually meaningless for this type of problem. Furthermore, the large tonnage minimum production rate requirement for ore of concentrator quality indicates that small-scale production is totally economically unacceptable. The ASARCO smelter in Tacoma would not accept the low-grade raw ore; only clean contract-stipulated concentrates and/or adequate flux to meet their environmental quality standards."

Following a court trial during which the district judge viewed the premises, the Court entered its decree and found:

"1. This Court has jurisdiction by virtue of 28 U.S.C. § 1345.

"2. Stripping away over burden to expose rockbed, particularly in the initial exploration stages, is not proper mining procedure, under the circumstances shown by the evidence in this case.

"3. Defendants' utilization of blasting and bulldozing was destructive to the surface resources and consequently not a reasonable method of exposing subsurface deposits under the circumstances shown by the evidence in this case.

"4. Under the circumstances shown by the evidence in this case, the Forest Service may require the locator of an unpatented mining claim on national forest lands to use nondestructive methods of prospecting.

"5. Defendants and their successors and agents, servants, employees and attorneys, and those persons in active concert or participation with them are permanently enjoined from conducting prospecting operations by means of bulldozing or blasting on the following mining claims located in Sections 7, 8, 15, 17, 18 and 20, Township 4 North, Range 5 E.W.M., in Skamania County, Washington: Half Penny, Silver Lode No. 1, Big Twinkle Mine, Richardson Lodge Claim, Richardson Little Twinkle Mine, and Lucky Strike.

"Plaintiff shall have judgment against defendants Ned N. Richardson and Dorothy M. Richardson jointly and severally in the amount of $2,263.13 plus its costs and disbursements herein."

This case involves the interrelationship of federal statutes concerning the national forests and mining on public lands. These are 30 U.S.C. § 26, 30 U.S.C. § 612,1 16 U.S.C. § 551,2 and 16 U.S.C. § 478.3 Since 1897 the Secretary of Agriculture has had authority under sections 478 and 551 of Title 16 to promulgate regulations concerning the methods of prospecting and mining in national forests; yet it was not until 1974 that such regulations were adopted. (35 C.F.R. Part 252). No such regulations were in effect before this lawsuit was commenced in November, 1973 and the forest rangers relied on certain directives and guidelines issued by the department and upon 30 U.S.C. § 612 for their authority to restrain the unwarranted surface destruction of the national forest.

The basic mining law of May 12, 1872 (17 Stat. 91) granted a locator broad possessory rights. "The locators of all mining locations . . . shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations . . . " (30 U.S.C. § 26). Before 1955 this broad grant was consistently recognized so long as the uses were incident to prospecting and mining. In United States v. Rizzinelli, 182 F. 675 (D.Idaho 1910), the establishment and maintenance of saloons on an unpatented mining claim in the forest reserve was held to be an indictable offense. The court said:

"The paramount ownership being in the government, and it also having a reversionary interest in the possessory right of the locator, clearly has a valuable estate which it is entitled to protect against waste and unlawful use."

Also, in Teller v. United States, 113 F. 273 (8th Cir. 1901), the defendant was convicted of unlawfully cutting and exporting timber from public lands of the United States, including from an unpatented mining claim. Upholding the conviction, the Court of Appeals said, in part:

"While his location so far segregated and withdrew the land from the public domain that no rival claimant could successfully initiate any right to it until his location was avoided and his entry was canceled (James v. Iron Co., 46 C.C.A. 476, 107 Fed. 597, 603, and cases there cited; Hartman v. Warren, 22 C.C.A. 30, 76 Fed. 157, 160; Pacific Ry. Co. v. Dunmeyer, 113 U.S. 629, 5 S. Ct. 566, 28 L. Ed. 1122), it gave him nothing but 'the right of present and exclusive possession' for the purpose of mining. It did not devest the legal title of the United States, or impair its right to protect the land and its product, by either civil or criminal proceedings, from trespass or waste."

The foregoing statement was quoted with approval by our court in United States v. Nogueira, 403 F.2d 816 (9th Cir. 1968) where we upheld the right of the United States to seek to enjoin the use of an unpatented mining claim for a residence wholly unrelated to any mining activity whatsoever. Similarly, in United States v. Etcheverry, 230 F.2d 193 (10th Cir. 1956), the owner of unpatented mining claims was held not entitled to lease the claims for grazing of livestock a use unrelated to mining. See also: United States v. Schultz, 31 F.2d 764 (N.D.Cal.1929).

It perhaps is not surprising that the reported cases to this date concerning the surface use of unpatented mining locations have treated only the issue of uses unrelated to prospecting and mining. This is true even of the precedents since 1955, after the passage of the Surface Resources Act of 1955, 69 Stat. 367, and particularly 30 U.S.C. § 612 (supra). Converse v. Udall, 262 F. Supp. 583 (D.Or.1966), aff'd 399 F.2d 616 (9th Cir. 1968), cert. den. 393 U.S. 1025, 89 S. Ct. 635, 21 L. Ed. 2d 569 (1969), arose out of an administrative action by the Secretary against locators to establish control of the surface resources (timber) on unpatented mining claims. In United States v. Toole, 224 F. Supp. 440 (D.Mont.1963) the United States brought an action to cancel mining locations and obtain damages for trespass. The court held that a deposit of peaty material or peat moss was not a valuable mineral locatable under the mining laws and awarded damages under 30 U.S.C. § 612 to the United States for the material removed. The case of United States v. Curtis-Nevada Mines, Inc., 415 F. Supp. 1373 (E.D.Cal.1976), involved the surface use of unpatented mining claims located both in the national forest under the jurisdiction of the Department of Agriculture, and on public lands under the jurisdiction of the Department of Interior. The court required the defendant to file an operations plan for the unpatented claims located in the national forest pursuant to 36 C.F.R. Part 252, but not for the claims on lands under the jurisdiction of the Bureau of Land Management which had promulgated no similar regulation. The court also enjoined the defendant from prohibiting or interfering with public use of the surface of the claims for hunting, hiking, camping and recreational activities "so long as there is no interference with ongoing mining operations."

The Surface Resources Act of July 23, 1955, 69 Stat. 367, 30 U.S.C. § 611, et seq. (Footnote 1), must be relied upon to uphold the decree of the District Court in the present case. The year following its enactment, the Secretary of Interior promulgated regulations (21 F.R. § 7619, 43 C.F.R. § 185.120, et seq.). Section 185.122 of the regulations (now renumbered and found as 43 C.F.R. § 3712.1)4 sets forth the Secretary's interpretation of the statute in relation to the surface use of unpatented mining claims on public lands under the jurisdiction of the BLM. A fair reading of this regulation must lead to the conclusion that insofar as BLM lands are involved, any activity is permissible which is directly related to mining or prospecting.

These regulations do not, however, apply to national forest lands under the jurisdiction of the Secretary of Agriculture and in the instant case we look to Title 30 U.S.C. § 612 unaided and unimpeded by administrative regulation. The court observed in United States v. Curtis-Nevada Mines, Inc. (supra) that the statute is ambiguous and we must look to legislative history for aid in interpretation.

Testimony taken in hearings before the Committee on Interior and Insular Affairs on § 1713, a bill whose language was identical to that adopted as 30 U.S.C. § 612, indicates that the Congress was aware of the problem of excessive bulldozing.5

Further, in commenting on section 4(c) of 69 Stat. 368 (30 U.S.C. § 612), the House Committee considering the bill stated:"This language, read together with the entire section, emphasizes recognition of the dominant right to use in the locator but strikes a balance in the view of the committee, between competing surface uses and surface versus subsurface uses."

Section 612 speaks of "prospecting", "mining" and uses "Reasonably incident thereto." It speaks of "the right of the United States to manage and dispose of the vegetative resources thereof and to manage other surface resources thereof." It limits such control so "as not to Endanger or Materially interfere with prospecting, mining . . . or uses Reasonably incident thereto." It also in subsection (c) precludes the exploitation of surface resources by a locator "except to the extent Required for . . . prospecting, mining . . . and uses Reasonably incident thereto." (Emphasis supplied.) Bearing in mind that this admittedly ambiguous restatement of the rights of mining locators was intended to supersede and modify the pre-existing recognition of broad rights under 30 U.S.C. § 26 (discussed supra), we think the words we have underlined in the quoted extracts from the statute are the ones that point the direction of the changes intended. The findings of fact by the District Court implement a correct interpretation of the statute, are supported by the evidence, and cannot be faulted under the standard prescribed by Rule 52(a) Fed.R.Civ.P.

Congressional policy as expressed in the National Environmental Policy Act of 1969 is also consistent with this disposition.6

In summary, we suggest that each case of this kind is controlled by the facts of each particular case. The District Court in its findings emphasized and reiterated the "circumstances shown by the evidence in this case." Here the locators did not have a mine, they had a prospect, they were still exploring. Their methods of exploration were unnecessary and were unreasonably destructive of surface resources and damaging to the environment. They were warned and persisted. The judgment of the District Court is affirmed.