ELR Citation: ELR 20029
No(s). 00-1139 (10th Cir. Jul 18, 2001)

The court affirms in part and vacates in part a lower court decision dismissing claims brought by the owner of several mill sites against the U.S. Forest Service for denying him use of his mining claims. In 1983 and 1984, the Forest Service authorized the owner to conduct operations at a site other than his preferred site, imposed certain mitigation conditions, and required a reclamation bond. The landowner failed to comply with those decisions, and in 1985 he announced his intent to begin operations at the site as well as at other of his sites. The Forest Service continued to demand that he have an approved plan of operations, but the owner claimed that he did not need one. Eventually, the Forest Service sent him a letter in November 1997 demanding that he remove his equipment and materials from the mill sites, and the owner filed suit. The lower court upheld the Forest Service's decision and the owner appealed.

The court first holds that the lower court lacked jurisdiction to resolve issues surrounding the letter. The owner did not have standing to challenge the 1997 letter because it is not a final agency action. The letter does not order the owner to file an operating plan or state that he does not have one The letter merely implements decisions made long ago. Similarly, the owner failed to appeal the Forest Service's 1983 and 1984 decisions conditioning the owner's operation of the mill sites, and the statute of limitations has since passed. The court, therefore, vacates the lower court's decisions as to these issues. The court, however, affirms the lower court's dismissal of the owner's allegations of bad faith. The owner failed to state a claim on which relief may be granted.

The full text of this decision is available from ELR (5 pp., ELR Order No. L-390).

Counsel for Plaintiff
Myron Cherry
Law Offices of Myron Cherry
Fort Lupton CO 80621
(303) 857-1940

Counsel for Defendants
Gary Till
U.S. Attorney's Office
1200 Federal Office Bldg.
1961 Stout St., Denver CO 80294
(303) 454-0100/844-2081